Everything You Need to Know About Norwich Pharmacal Orders
In 1974, a pharmaceutical manufacturer called Norwich Pharmacal noticed that its patents were being violated. In the years between 1960 and 1970, tonnes of the chemical furazolidone, an antibacterial, were imported into Britain unlicensed. Although Norwich Pharmacal knew this had happened, it was unable to find out who was doing the importing and therefore effectively stealing from them.
The key to finding out who the culprits were was that Customs and Excise commissioners knew every detail about the movement of furazolidone across the border. The problem was, however, that the commissioners claimed not to have the authority to release the information to Norwich Pharmacal as this would be a breach of confidentiality. The drug company was left with no other option but to take the commissioners to court. In the end, the House of Lords decided that "where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers".
The slightly cryptic-sounding statement created an exception in the normal legal framework. Normally, if company A is sued by company B for fraud, company B can obtain information from company A, but not from the third party company C. This applies even if C were to hold information that would influence the decision. A court order would be necessary to enable B to get C's information.
With a Norwich Pharmacal Order, ("NPO"), if company C is somehow involved with the case between A and B, but is not likely to be a part of the case, B may be able to acquire certain information from C. There are limitations, and an NPO is only given when it is considered to serve the interests of justice. The most common reasons for the use of an NPO are the identification of the best defendant or as a way to obtain information to back up a claim. An NPO can be obtained at any time during a legal action, but cannot be used to affect foreign proceedings.
What is the procedure?
Southampton Row Solicitors will be able to advise you on the exact steps that must be taken in obtaining an NPO. The general procedure, however, is as follows. A claim form must be filled out by the claimant, claiming disclosure of the wrongdoer's identity from the facilitator. Following this, disclosure of the wrongdoer's identity is sought with an interim application, which must be supported by written evidence.
Once the wrongdoer's identity is revealed by the facilitator to the claimant, the case has achieved its aim. At this point, new proceedings are usually brought against the wrongdoer. If the facilitator is not a part of the new case, they are released from the proceedings. We will help you in the most effective way possible and guide you in bringing your claim to completion in a satisfactory manner.
In what circumstances is a Norwich Pharmacal Order granted?
As mentioned above, for a third party to be liable to present the information requested by the claimant, they must have been involved, innocently or not, in the wrongdoing against the claimant. It must also be clear that justice will be served by the revelation of this information.
To clarify, there are four elements that the claimant must demonstrate to be granted an NPO:
- It is in the interest of justice
- Action is not possible without the third party's information
- The third party is not just a witness, but is actually involved in the wrongdoing
- There exists a basis to suggest that a wrong has truly been committed.
The second element is so that NPOs are not used to obtain information just to satisfy curiosity. It must be the case that without the third party's information, action is not possible.
One of the most difficult parts to prove is number three. At Southampton Row Solicitors we have the knowledge and experience to help you produce your claim form and interim application in a way which demonstrates the facts of the case in the most favourable light.
A cautionary note though, even if all of the conditions above are met, an NPO may still not be granted. The court's power is discretionary, so if the court decides that it is not in the public interest to bring the third party into the case, it is not obliged to.
For more information on this and other litigation matters, please contact the London litigation team at Southampton Row Solicitors.
