Obtaining the Identity of Potential Defendants in English Litigation

Simply because a claimant with a good claim cannot identify the actual defendant to sue is not left without recourse. A court has jurisdiction to order persons who have information that may lead to the identification of the defendant to disclose that the information. Accordingly, unidentified defendants’ identities may be made the subject of disclosure by a court in England.

The exercise of this jurisdiction is best described as uncommon, but by no means infrequent. Although this jurisdiction of the court is available, a court will not exercise it unless the result would be that the claimant is left in a position where proceedings cannot be commenced against a named defendant. The person seeking the court order must have a genuine intention of commencing proceedings; and the intending claimant may consider giving the court an undertaking to do so prior to granting the relief to bolster their prospects of receiving a favourable order.

Other means of obtaining evidence is usually available to identify a defendant and those means ought to exhausted before resorting to the Norwich Pharmacal jurisdiction.

Applications for disclosure of information may be made in claims relating to torts (such as infringements of intellectual property rights), breach of contracts and misuse and unlawful disclosures of confidential information. The jurisdiction is not limited by a particular cause of action in the hands of the claimant, as it is of a general application. Notably, persons who are known to be willing participants in the wrongdoing are duty bound to disclose the identity of their accomplices (known as ‘joint tortfeasors’).

Simply because a person is ordered to disclose information, does not mean that they will be ordered to give standard disclosure of all documents and materials pertaining to the particular wrongdoing; that jurisdiction is available under CPR 31. The Civil Procedure Rules require that applications for orders for disclosure are made with evidence in support.

If interim injunctions (quia timet injunctions, freezing orders and search orders) are said to warranted in the circumstances, then the grounds for grants of those remedies must be made out in order to obtain that interim relief. Thus, Norwich Pharmacal applications may brought alongside other applications for preliminary injunctions, and so may be brought without notice to the person from whom information is sought. Moreover the third party must be operating as a facilitator of the wrongdoing, rather than be a mere witness to unlawful events.

The court also has power to require third parties to disclose documents that indicate how unlawful gains and profits and been applied. As such, orders may be obtained against financial institutions to reveal the sums owned by the intended defendant in their possession.

The Case: Norwich Pharmacal Co

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain their identity. The Commissioners, in the course of performing their duties, had information that would identify the imports. Also, they had unknowingly played a part in facilitating importation of infringing goods.

In the course of judgment, the House of Lords found 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. If the third party bears expense in assisting, the person seeking assistance is bound to reimburse those expenses.