Equitable Remedy of Norwich Pharmacal Order: Unmasking the Masked

Towards the last quarter of the 19^th Century, a very important ‘marriage’ was celebrated in England that brought together two hitherto hostile, but independent personalities. This newly wedded couple was the common law and equity. So important was their holy solemnization that it took a statute (i.e. the Judicature Act of 1873-1875) to tie them down in the matrimony. In order to give meaning to the Biblical command that the two shall become one upon marriage, Equity immediately took on her husband’s name and became part of his family. Her permanent home known in official circles as the Court of Chancery was annexed to the husband’s residence as one of its branches and was renamed the Chancery Division.

In order for sanity and peace to prevail in the marriage, it was agreed that the wife (Equity) would always have the last say in any future misunderstanding. For the pessimists, the marriage was bound to fail because of the contrasting traits and temperaments of the couple. Those who knew the groom ‘from infancy’ claimed he was a choleric in temperament; rigid in adaptation and unyielding in taking a stance. On the contrary, the bride was known to be sanguine in temperament, generous in giving and easily malleable to new conditions. It was written of them metaphorically that two streams met and run in the same channel, but their waters never mixed.^[i]

During the celebration of the marriage, the groom was well advanced in age and dropped all thoughts of making new babies. The bride on the other hand was fairly young and was ever prepared to make new babies when the opportunity presented itself. Due to the husband’s domineering nature, many were those who doubted whether the wife will be able to make new babies again after her marriage. But it was just a matter of time for the sceptics to be proven wrong. 

Before the first half of the 20^th Century, Equity had delivered its first baby. The baby girl was named ‘Promissory Estoppel’. Three new beautiful ‘babies’ (remedies) were later to follow around the centenary anniversary of the marriage. These new babies (equitable remedies) were christened – Norwich Pharmacal, Mareva, and Anton Pillar. Of these, Norwich Pharmacal was the least known, but as the scriptures say, the stone the builders rejected has now become the cornerstone of the building^[ii]. In our present internet age, Norwich Pharmacal, arguably appears to be the most charming and desirable princess (remedy) for the 21^st Century litigant. 

The reason is simple. Cyberspace now allows files to be shared easily and so may allow other wrongdoers to try to evade liability for matters such as breach of copyright by hiding their identities. The enormous potential audience on the internet can mean that very real damage can be done to reputation or other commercial interests in a very short time. In order to identify the wrongdoer, the court has become increasingly willing to allow the use of Norwich Pharmacal Order to allow those with potential claim to track down the author or wrongdoer.^[iii] In this article, the writer seeks to explain the concept of Norwich Pharmacal Order with the view to making a case for the Ghanaian lawyer to consider embracing it.

Norwich Pharmacal Order

Norwich Pharmacal Order (NPO) is a court order for the disclosure of documents and information from innocent third parties inadvertently ‘mixed up’ in some wrong doing. The purpose of the order is to allow a prospective claimant to obtain relevant information from a third party so as to take action against someone who is committing a wrongful act where the wrongdoer is unknown to the applicant. The order was first granted by the House of Lords in the case of Norwich Pharmacal Co. v. Customs and Excise Commissioners^[iv] from which the remedy derived its name. 

In that case, an American drug company obtained the order from the House of Lords to use a pre-action bill of discovery to obtain the identity of a party secretly importing the company’s patent-protected drug from the English customs authorities so that the importer could be sued for patent infringement. Lord Reid stated the principle thus: “If through no fault of his own a person gets mixed up in tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers”.

Although the order was developed in relation to intellectual property cases prior to the advent of internet^[v], it has now been adapted to address the realities of the online world^[vi]; with a wide extension of the scope covering other torts, like defamation. It is also applied to breach of a contract and criminal offences. 

Some instances of the Application of NPO by the courts in the 21^st Century 

• In the case of Applause Store Productions Ltd. v. Raphael^[vii] the court in 2008 granted a Norwich Pharmacal Order against Facebook ordering them to disclose the registration details, email and IP addresses used by the respondent.

• A year later, the court in the case of G & G v. Wikimedia Foundation Inc.^[viii], granted the order for the disclosure of IP addresses used by a Wikipedia editor who had added information to a Wikipedia article which the claimant said infringed on her privacy rights.

• Further, in 2009, in the case of Lockton Companies International v. Persons Unknown,^[ix] the order was sought against Goggle to disclose the details of a subscriber and the IP addresses to identify the sender of anonymous defamatory emails.

• Two years after the Lockton case, their Lordships in the Carlyle Group v. BT case^[x]granted NPO requiring BT to provide details of the ISP address of the ‘hacker. The case had to do with emails belonging to an employee that were ‘hacked’ and forwarded to the press. 

Conditions to be satisfied before the order may be granted 

Generally, three conditions must be satisfied before the order can be obtained.^[xi]

• Firstly, there must be a wrongdoing which has been or has arguably been committed by an ultimate wrongdoer.

• Secondly, there must be a need for the order to enable the applicant to take some action against the unknown person. If the information can be obtained via another route, the order may not be granted.

• Thirdly, the third party against whom the order is sought must be mixed up in the wrongdoing so as to have facilitated it and is able or likely to be able to provide the necessary information for the wrongdoer to be pursued. The respondent should not just be a mere witness, but must have participated in the wrongdoing unwittingly.

How NPOs differ from the normal disclosures?

• Disclosures in our Rules book usually take place during the pendency of an action, but NPO can be granted before the commencement of an action, during the pendency of an action and after the delivery of a judgment.

• Disclosures under the Rules may involve the parties, but an NPO may be granted against a third party who may not be the real target or defendant.

• Disclosures under the rules appear to relate to documents^[xii], but under NPO, the disclosure may go beyond documents and solicit information from the third party.

• Disclosure under the Rules is a statutory creation, while NPO is an equitable order granted at the discretion of the court.

Why NPOs have become popular

NPO has become popular because of the rise in use of social media. In their paper, ‘Norwich Pharmacal Order – A Useful Tool in Litigation’, BHW Solicitors passionately observed: “Quite often, people believe that they can hide behind a fake account to provide them with a sense of anonymity when sending abuse and harassing other users. Recent reports have shown racist abuse aimed at a number of prominent figures, in particular, high level footballers, who are often a target for abuse from online ‘trolls’”.^[xiii]

Similarly, Simon Bushel in his article, ‘Norwich Pharmacal Orders remain vital in the Internet Age’ noted: “The Norwich Pharmacal Order has adapted well to the internet age….since the Norwich Pharmacal jurisdiction came into being in 1974, its development has proceeded largely uninterrupted and has provided remedies in an increasingly wide range of situations”^[xiv].

Why are NPOs used?

NPO may be used to achieve a number of objectives including:

• Identifying a wrongdoer 

• Helping to identify the true nature of the wrongdoing 

• Assisting in tracing assets and proprietary claims 

• For the disclosure of a source of information contained in a publication

• Enabling an applicant to plead its case

• Enabling the victim of a wrongdoing to answer allegations made against him

• Enabling a Defendant to obtain information

• Obtaining a gagging order against the respondents to refrain from disclosing any information to the wrongdoer.

• Aiding execution of a judgment.

The NPO Controversy

NPO is free from controversy. It is on record that one of the most creative judicial minds of the 21^st Century, Lord Tom Denning, resisted its development when he earlier had the opportunity to deal with the Norwich Pharmacal case at the Court of Appeal^[xv]. He pronounced: “It would be intolerable if an innocent person – without any interest in a case – were to be subjected to an action in Chancery simply to get papers or information out of him.”

However, on appeal, all five members of the House of Lords on the panel welcomed the order. Interestingly, ‘Old Tom’, like the Biblical Saul, later got ‘repented’ and became a campaigner of NPO. In the case of Bankers Trust Co. v. Shapira^[xvi], he advocated that for justice to be done in appropriate cases there was the need for the scope of NPO to be extended, because the order was “a very important part of the court’s armoury to be able to order discovery”.^[xvii] He was however quick to add that the new jurisdiction must be exercised with great caution.^[xviii]

Concerns are sometimes raised about the degree of intrusion^[xix] and inconvenience which might appear unjustified at a first glance. This is countered by the argument that it seems reasonable to require a third party to provide assistance to the victim of a fraud or a wrongdoing when that information is readily available.

Defences of complying with NPO

There are some, but limited defences available to third parties not to comply with NPOs.

• Journalist’s sources – An order that tries to reveal the source of a journalist may be refused or challenged on grounds of human rights or undermining public policy. In Ghana, the Supreme Court in the case of Ghana Independent Broadcasters Association v. The Attorney General and National Media Commission held: “… a request to a journalist to disclose his source of information was a violation of the right to press freedom. The court may only intervene when there was an overriding requirement in the public interest”.^[xx]

• Criminal prosecution – Apart from fraud, if the disclosure can trigger a possible criminal prosecution against the third party, they may legitimately be able to refuse to assist.

• Litigation tactics – If the NPO is tactically sought to strengthen one’s position in litigation, it may be refused.

• Privacy/confidential concerns – Where the third party has a privilege not to disclose under the law, like professional or religious advisors the order may fail.

• Threat to life – Where it will endanger the life of the third party.^[xxi]

• Risk for both parties – The court may balance the risks to the third party and the wronged party and if the former outweighs the latter refuse the application.

Basis for the application of NPO in Ghana

Although NPO traced its origin in UK, it has now been embraced and applied in many common law jurisdictions across the globe. Some countries like Singapore^[xxii] have even incorporated it into their domestic statutes. The courts in countries like Canada^[xxiii], New British Virgin Islands,^[xxiv] Hong Kong^[xxv], Quebec,^[xxvi] Bahamas and many more have all applied NPOs. According to Simon Bushell supra, “The Norwich Pharmacal Orders have been adopted by common law jurisdictions around the world, where they have proven highly effective in revealing vital information about wrongdoing”.

How then does the application in other common law impact on us as a country? We need not lose sight of the fact that under article 11 clause 1 of the 1992 Constitution, the common law generally is part of the laws of Ghana.^[xxvii]

Besides, our Rules of Court appear to welcome practices from other common law jurisdictions where necessary. Order 82 rule 1 of the High Court Rules expressly provides:

“Matters not provided for

• Where in respect of any matter or procedure, no provision is made by these Rules, the practice for the time being in force in any common law country may where convenient be applied”. 

Conclusion

It is a notorious fact that the common law is strictly adversarial in nature and its rigidity cannot be doubted by an objective follower of the Anglo-Saxon Legal tradition. In fact, the British who championed and shaped the tradition over many centuries are known for being innately conservatives. Nonetheless, they have been able to swallow their pride and yielded to the realities of the times by introducing NPO which is inquisitorial in nature and quite inconsistent with the ancient principles of the tradition. 

Given the prevalence of online wrongdoing by internet hackers, it is clearly understandable that other common law countries across the globe now find NPO attractive. It is unfortunate that for forty-six good years Ghana has not found it expedient to move along with their counterparts in other jurisdictions. It seems to me that there is no better time to join the global ship than now. The rampant online activities of Sakawa mafias, the continuous surge in mobile money fraud, the prevalence of fraudulent loan merchants and the opportunistic direction (‘akwankyere’) of fake pastors alone should inform us as Ghanaian lawyers to consider embracing NPO, which has been described in the 21^st Century as the panoply of remedies.^[xxviii]

Acknowledgement

My sincere gratitude goes to the following:

• His Lordship Justice Victor Ofoe JA for his extraordinary mentorship.
• Her Ladyship Justice Janapare Bartels-Kodwo JA and His Lordship Justice Kyei Baffour JA for their constant support.
• His Lordship Justice George Buadi, Her Ladyship Justice Sedina Agbemava, Her Ladyship Justice Janet Anima Maafo, Her Ladyship Justice Eudora Dadson and His Lordship Justice Amos Wuntah Wuni for always checking up on me.
• Lt. Col. Felix Korbieh & Lt. Col. Ernest Awuah Ameyaw; my kind mates and trusted friends from the Faculty who never become weary of me.
• Lawyer Mettle Nunoo and Lawyer Silas Osabutey for always remembering me whenever they go on your knees.
• Lawyer Dennis Adjei of Dennis Law fame and Mr. Mathias Kormivi Dzotsi for their technical assistance.

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^[i] See Ashburner, ‘Principles of Equity’, 1^st ed., 1902, p. 23, quoted with disapproval in United Scientific v. Burnley Borough Council [1978] A.C. 904, 924-925, 944, 957. See also Snell’s ‘Principles of Equity’, 28^th ed., 1982, p. 17

^[ii] See Psalms 118:22; Matthew 21:42; 1 Peter 2:7

^[iii] Infra, see footnote vi

^[iv] Norwich Pharmacal Company & Ors. v. Customs and Excise [1974] AC 133 (26 June 1973)

^[v] Internet was first invented on January 1, 1983, but it became available to the public on August 6, 1991.

^[vi] See Norwich Pharmacal orders/Dispute Resolution Lawyers, Boyes Turner

^[vii] Applause Store Productions Ltd. v. Raphael (2008) EWHC 1781 (QB) [2008] Info TLR 318 (24 July 2008)

^[viii] G & G v. Wikimedia Foundation Inc. (2009) EWHC 3148 (QB) [2010] EMLR 14 (2 December 2009)

^[ix] Lockton Companies International v. Persons Unknown  & Another [2009] EWHC 3423 (QB) (23 November 2009)

^[x] Carlyle Group v. BT [2011] All ER (D) 84 

^[xi] See Mitsui and Co. Limited v. Nexen Petroleum UK Ltd. [2005] 3 All ER 511

^[xii] See Order 21 of the High Court Rules, 2004 (C.I. 47)

^[xiii] Published on April 26, 2019 by BHW Solicitors

^[xiv] Published on June 20, 2019

^[xv] See the decision of Denning M.R. on July 25, 1972

^[xvi] Bankers Trust Co. v. Shapira [1980] 1 WLR 1274

^[xvii] See page 1281 supra

^[xviii] See page 1282 supra

^[xix] See the Court of Appeal’s views on MPO in Dorsey James Michael v. World Sports Group Pte Ltd. [2014] 2 SLR 208

^[xx] Ghana Independent Broadcasters Association v. The Attorney General and National Media Commission [2016] DLSC 5619 at p. 30, per Benin JSC

^[xxi] See Muwema v. Facebook Ireland Ltd. [2017] IEHC 69

^[xxii] See O 24 r 6 (5) of the Rules of Court (ROC) (Singapore) and also Singapore Court Practice 2014 at 24/6/5 and 24/6/6

^[xxiii] See the case of Glaxo Wellcome PLC v. M.N.R. [1998] 4 C.F. 439

^[xxiv] See K & S v. Z & Z BVIHCM (COM) 2020/0016 

^[xxv] See Dish Network LLC & Others v. Zentek International Co. Ltd & Another  [2009] HKEC 220

^[xxvi] See Fers et Metaux Americain S.E.C. et als vs Picard et als

^[xxvii] See Soon Boon Seo. V. Gateway Chapel Centre [2009] SCGLR 278

^[xxviii] Jersey Briefing: ‘Disclosure from Third Parties –A Panoply of Remedies’

Photocredit: Photo by MIKHAIL VASILYEV on Unsplash