by Matthew Austin November-06-2023 in Commercial & Business
Pre-Litigation Discovery – A Broader Scope for Norwich Pharmacal Orders
In a recent judgment handed down by Mr Justice Conor Dignam, two property developers have been ordered to provide the ESB with certain information about several of its employees alleged to have demanded cash payments for preferential work completed near construction sites.
In his judgment Mr Justice Dignam said that the ESB was entitled to what are known as Norwich Pharmacal type orders against Richmond Homes and Arkmount Construction. The ESB’s application was made after the two construction firms informed the plaintiff that its employees had sought payments from them for completion of works at housing developments in North County Dublin in May 2022. The court acknowledged that the firms had provided the ESB with the names of four persons alleged to have sought payments and that it was satisfied that “clear proof of wrongdoing” by persons other than the four named had been put before the court.
What is a Norwich Pharmacal Order?
A Norwich Pharmacal Order (“NPO”) is a type of court order which compels a defendant to provide information concerning the identity of an anonymous third party. This novel type of pre-action discovery is usually sought to facilitate the commencement of proceedings against the wrongdoer by the plaintiff who will argue that the absence of the information sought will hinder its ability to seek redress. An NPO was first granted in the English case of Norwich Pharmacal Co v Customs and Excise Commissioners[1]. In more recent years, these orders are often sought against social media and internet service providers, in cases where an anonymous individual posts material on a website which constitutes a legal wrong, for example a breach of a persons’ intellectual property rights or their right to a good name.
See our previous article on NPOs in the context of online anonymity here.
The leading authority in this country and the first Irish case to recognise the jurisdiction of the Irish courts to grant this type of relief was the Supreme Court decision in Megaleasing UK ltd v Barrett[2]. In that case the Supreme Court took a very restrictive view as to the type of information which could be made available to the plaintiff, confining it to the identity of the wrongdoer only. In recent years, the caselaw has developed to widen the range of circumstances where an order will be granted to reveal the identity of a wrongdoer, however, the Irish courts have generally tended to apply this restrictive approach in relation to confining the order to revealing identity only. This approach has contrasted with the UK and other common law jurisdictions where the information which can be obtained from a defendant can be more extensive.
Widening of Scope
In Megaleasing the court held that the remedy of discovery ‘should be confined to cases where a very clear proof of wrongdoing exists, and possibly to cases where what is really sought are the names and identity of the wrongdoers rather than factual information concerning the commission of the wrong’. In that case the court overturned a decision by the High Court for certain orders for the discovery of information beyond the names of the wrongdoers. The court held that “if the scope of this type of action is ever to be widened it will require the fullest disclosure on the part of applicants so that all information is laid before the Court at the earliest possible moment. Details of the alleged wrongdoing should be put before the Court with a degree of precision, and it should be made clear how it is suggested that the defendants may be able to help.”
The recent High Court orders made in favour of ESB is the first Irish decision in which this scope has been definitively widened. In the judgment handed down by Mr Justice Dignam this month he ordered the disclosure of not only the names of the alleged wrongdoers but also the date and the amount of money alleged to be paid. This order clearly goes beyond the scope of what was set down in Megaleasing, where the Supreme Court confined the order to the identity of the wrongdoer only. The High Court referred to the restrictive approach that has been taken since Megaleasing but stated that it was satisfied that neither Megaleasing nor its preceding cases precluded “an order directing broader disclosure being made in an appropriate case”. It was noted that this view was clear from the express terms of Megaleasing and that there is “ample basis” for concluding that it is open to the Court to make a broader disclosure order in an appropriate case. In his judgment Mr Justice Dignam noted that had this possibility of developing the law not been recognised by the Supreme Court in Megaleasing it would of course not be open to the High Court in this case to widen the scope of the law.
In granting the orders Mr Justice Dignam stated that he was satisfied there was “clear proof of wrongdoing” by persons other than those names already given to the ESB by the defendants and the case involved “very grave” allegations about improper payments for the provision of what is a public utility. The court was satisfied that in a case which is based on the making and receipt of improper payments the date and amount of each payment is the “bare minimum” required to be able to enable the plaintiffs to initiate proceedings.
Future of NPOs
This is a significant development in the granting of NPOs by Irish courts and may indicate a move away from a restrictive approach that has been followed in Ireland since Megaleasing. In cases that necessitate information beyond the identity of the wrongdoer and in circumstances where clear and unambiguous proof of wrongdoing is put before the courts, there may be a wider discretion taken by the High Court in future cases. As explored in our previous article on this topic, the Irish courts since Megaleasing have already been willing to expand the circumstances where the identity of a third party can be revealed and NPOs have proven to be flexible and versatile litigation tools in a multitude of circumstances. This recent order has indicated that NPO applications will continue to increase in the coming years and along with the circumstances, the range of information that can be sought may be expanded. In any event, this case will be of importance to both practitioners with an interest in the area and potential litigants alike.
For further information on anything mentioned above, please contact Matthew Austin of the Commercial and Business team at Hayes.
[1] [1974] AC 133
[2] Megaleasing UK Ltd. V Barrett [1993] ILRM 497.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.