High Court and Court of Appeal update and confirm law on Norwich Pharmacal relief in Ireland

Speed Read

Two recent judgments of the Irish Courts provide helpful guidance on the scope of the Norwich Pharmacal (NP) jurisdiction in Ireland. On the one hand, they confirm that NP relief is exceptional and will only ordinarily be limited to an order requiring the disclosure of information identifying prospective defendants. On the other, they confirm that, in rare cases, an order for NP relief can extend to such additional information as might be needed to plead the claim against those prospective defendants (in this instance, a claim in fraud).

Introduction

Orders for NP relief are court orders requiring the defendant to disclose certain information for the sole purpose of enabling the plaintiff to pursue legal action against a third party / parties. 

On 13 October 2023, Mr Justice Dignam delivered judgment in the High Court in Electricity Supply Board & Anor v. Richmond Homes & Anor[1] (ESB). Then, on 23 October 2023, Mr Justice Collins delivered judgment in the Court of Appeal in Blythe v. The Commissioner of An Garda Síochána[2] (Blythe). Together, the two judgments provide a useful summary of the development of the NP jurisdiction in Ireland, compared with that in England and Wales.

The decision in ESB

The judgment in ESB represents the first time that NP relief has been granted by the Irish Courts in respect of information beyond the identity of the alleged wrongdoer.

The case involved allegations of improper payments having been sought by certain employees of the plaintiffs, ESB and ESB Networks DAC, in exchange for preferential treatment in respect of electrical works. The facts are unusual as the plaintiffs were first alerted to the issue by the defendants (a development company and a construction company) when they raised concerns relating to such payments, leading to the plaintiffs seeking disclosure from the defendants of information relating to the payments.

The Court acknowledged that the Supreme Court, in the first judgment of the Irish Courts regarding the NP jurisdiction[3], had confined the relief to disclosure of the “identity of the wrongdoers, rather than factual information concerning the commission of the wrong”. However, the Court also considered that the Supreme Court had envisaged that the jurisdiction might be extended in appropriate cases in the future.

The Court concluded that any disclosure should, in any event, be limited to what is strictly necessary to enable the plaintiff issue their intended proceedings. While in most cases this might be limited to the identity of the alleged wrongdoers in question, in this instance it was clear that the plaintiffs’ intended proceedings would involve allegations of fraud.  Given the particular requirements for pleading fraud (including that “dates and items” be pleaded), the Court was ultimately satisfied that disclosure should be made in this particular instance of, not just the alleged wrongdoers’ identities, but also the dates and amounts of the allegedly improper payments in question.

The decision in Blythe

In this case, the Commissioner of An Garda Síochána (AGS) had appealed against a NP order which had been made in the High Court. The case concerned the alleged circulation of social media messages among a number of members of AGS, which the plaintiff alleged were defamatory of him.  The plaintiff sought disclosure of the identity of his colleagues who had been involved in the exchanging of these messages. 

The Court observed that there had been “significant debate (and attendant uncertainty) as to the proper parameters” of the NP jurisdiction in Ireland, and seized on the opportunity to review the development of the jurisdiction in Ireland, and in England and Wales, and to restate, with welcome clarity, the parameters of the jurisdiction as it exists under Irish law. 

The following are among the Court’s key findings:

  • NP relief is not available ‘as of right’ and any invocation of the jurisdiction must be counterbalanced by significant safeguards.
  • Contrary to what was determined previously by the High Court[4], the absence of “very clear proof of the existence of a wrongdoing” would not, in and of itself, bar the plaintiff from relief.
  • On the other hand, the generally accepted threshold in England and Wales of requiring a plaintiff to demonstrate a “good arguable case” against the alleged wrongdoer, is too low.
  • The appropriate test in Ireland is whether the plaintiff can demonstrate that they have a “strong case” against the alleged wrongdoer, meaning that they would need show that they were likely to succeed at trial.
  • Relief should only be ordered where the alleged wrongdoing would not have taken place in the manner that it did, without the factual ‘involvement’ of the defendant. (Importantly, this is not the same as requiring that the defendant is a concurrent wrongdoer or otherwise responsible for the wrongdoing.)
  • Relief should not be granted unless the court is satisfied that: (i) the sought information is likely to be in the possession of the defendant and is necessary for the purposes of bringing court proceedings or pursuing another legitimate remedy; and (ii) the plaintiff has no other practicable means of obtaining that information.
  • Even if the relevant tests are met, the plaintiff is not automatically entitled to relief.  The plaintiff’s rights must be balanced against the rights of the defendant and the rights of the party about whom information is being sought.
  • As applications for NP orders are almost always heard in the absence of the party whose identity is sought to be disclosed, the plaintiff is subject to the same duties of candour and utmost good faith as are placed on a party seeking ex parte relief.
  • The defendant should ordinarily be entitled to have their legal costs of the application and of complying with a NP order discharged by the plaintiff, at least where they are not an alleged wrongdoer. Where the defendant bona fide, but unsuccessfully, resists the application, that should not ordinarily alter this conclusion.
  • The Court also echoed Dignam J in ESB by confirming that the NP jurisdiction should be “strictly limited” to disclosure sought for the purpose of bringing a claim, as opposed to material required to prove that claim.
  • The Court noted that while the parameters of the jurisdiction in England Wales have “expanded significantly” over the years, it expressed doubt as to whether the same liberal approach “can or should be followed here.”

Future of the NP jurisdiction in Ireland

While both courts in ESB and Blythe consider that there is some scope for future evolution of the NP jurisdiction in Ireland, there appears to be consensus that such development would need to be deliberate and “incremental”, rather than a simple following of the relatively more permissive developments that have occurred in England and Wales.

For more information, please contact Nicholas Cole, Partner, Graham O’Doherty, Senior Associate, or your usual A&L Goodbody Disputes & Investigations team contact.

Date published: 7 November 2023