Action for discovery
Disputes & Litigation

Actions for discovery are used by a claimant when they know that some civil wrong has been committed against them, but does not know who is responsible for the wrong.  Orders for actions of discovery are made in the discretion of the court, and are not available as of right.  Such orders are important as the cause of action provides a remedy where otherwise none would exist. The action is used to identify copyright infringement and other intellectual rights infringements and identifying unauthorised disclosers of confidential information.

For instance in cases involving the misuse of confidential information, the claimant may bring proceedings against those to whom the information was disclosed in order to ascertain the identity of the informant.

The decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners (1974) and its application in British Steel Corporation v Granada Television Ltd (1981) resurrected actions for discovery.  British Steel commenced legal proceedings against Granada when it came to light that confidential documents were used in creating a television programme.

In Norwich Pharmacal, the claimant knew that their patent was being infringed by unlawful importations into the United Kingdom, but could not identify the responsible party. Norwich Pharmacal Co commenced proceedings against Customs and Excise Commissioners, as they were in possession of the infringing goods from the time they entered the UK, and had the power to detain them and kept documents recording the entry of the goods into the UK. There was never any claim for infringement against the Commissioners.

Actions for discovery require that claimant to show by evidence that 1. a wrong has been carried out; 2. there is an ultimate wrongdoer; 3. a court order is required to identify the ultimate wrongdoer to bring an action against them; and 4. the defendant to the Norwich Pharmacal action is able to provide the information required to commence the action against the wrongdoer.