We have updated this note in light of the new CPR 81 and PD 81, in force 1 October 2012.
A quick guide to Norwich Pharmacal orders, including an explanation of what they are, when they can be used and the application procedure.
A Norwich Pharmacal order (NPO) requires a respondent to disclose certain documents or information to the applicant. The respondent must be either involved or mixed up in a wrongdoing, whether innocently or not, and is unlikely to be a party to the potential proceedings. An NPO will only be granted where "necessary" in the interests of justice.
Orders are commonly used to identify the proper defendant to an action or to obtain information to plead a claim. An NPO can be obtained pre-action, during the course of an action, and post-judgment. Although it is still a developing area of law, there is authority that indicates that a NPO can probably be made in one jurisdiction to identify a defendant for the purpose of proceedings in another jurisdiction (see Practice note, Norwich Pharmacal orders: an overview: In what type of cases would you apply for a Norwich Pharmacal order?: Relief in support of foreign proceedings (www.practicallaw.com/5-205-5031)).
The relief differs from applications for disclosure under CPR 31.16 (pre-action disclosure from a likely party) and CPR 31.17 (disclosure of documents against a non-party in the course of proceedings). You should proceed under either of those specific provisions if they are applicable.
An application for an NPO should generally only be made against a party who:
Is not likely to be a party in any subsequent claim.
Is mixed up in, or is involved in the wrongdoing, whether innocently or not.
Is not a "mere witness".
The applicant has an onerous duty to give full and frank disclosure of all material facts, especially if the application is made without notice. For more information, see Practice Note, Duty of full and frank disclosure (www.practicallaw.com/2-204-1451).
The applicant will be required to give certain undertakings to the court, including an undertaking in damages (see Practice note, Undertaking in damages (www.practicallaw.com/5-204-1987)).
The respondent may be able to refuse to provide the information on the basis of privilege against self-incrimination (www.practicallaw.com/7-205-5214).
The applicant will normally be ordered to pay the respondent's legal costs, including the cost of the disclosure itself.
In accordance with the general rule under CPR 31, the information disclosed can only be used for the purpose of the proceedings in which it was disclosed (CPR 31.22), If the applicant subsequently wishes to use the information for another purpose, he must obtain consent from the owner of the information or make a further application to court to request for permission.
The CPR does not expressly prescribe the procedure for seeking a Norwich Pharmacal order and there is some uncertainty as to the appropriate procedure. If the application is sought before the issue of substantive proceedings against the wrongdoer have been started, the procedure in CPR 8 is followed or, if the application is likely to be uncontested, an application is made under CPR 23. If the application is sought after substantive proceedings have been issued, the procedure in CPR 23 is followed. For more detail, see Practice note, Norwich Pharmacal orders: an overview: How do I apply?: What is the correct procedure? (www.practicallaw.com/5-205-5031) If in doubt as to the correct procedure in your case, seek guidance from the relevant court office.
Complete claim form, N208 (www.practicallaw.com/7-507-1833). In the Commercial Court, use N208(CC) (www.practicallaw.com/2-505-4770).
Prepare witness statement in support (see Practice note, Norwich Pharmacal orders: an overview, Evidence to be submitted).
File claim form and evidence at court (CPR 8.5(1)). Pay current court fee (see High Court fees: quick guide (www.practicallaw.com/3-205-8040)).
Serve the claim form and evidence (CPR 8.5(1) and (2)).
The court will give directions for the disposal of the claim or fix a hearing date.
Subject to the court's directions, the defendant must file and serve an acknowledgement of service (Form N210 (www.practicallaw.com/3-205-6324) or N210(CC) (www.practicallaw.com/0-205-6325)) and any written evidence upon which he relies within 14 days of service of the claim form (CPR 8.3(1) & 8.5(3)). The claimant may file and serve evidence in reply (CPR 8.5(5)).
The court determines the claim; this may be with or without a hearing.
If the order is granted, arrange for it to be drawn up and sealed.
Serve the order on the respondents. Serve personally to ensure the order may be enforced by committal proceedings.
For more information on the Part 8 procedure, see Practice note, Issuing and responding to Part 8 claims (www.practicallaw.com/3-506-2005).
Complete the application notice Form N244 (www.practicallaw.com/8-205-6543). In the Commercial Court, use N244 (CC) (www.practicallaw.com/0-506-7561), and Form 16A in the County Court.
Prepare witness statement in support (see Practice note, Norwich Pharmacal orders: an overview, Evidence to be submitted).
Draft the order.
File copies of application notice, evidence and draft order at court, and pay current court fee (see High Court fees: quick guide (www.practicallaw.com/3-205-8040)).
Serve the application notice, evidence and draft order on the respondent, at least three clear days before the hearing (CPR 23.7(1)) if possible.
The respondent may file and serve evidence in opposition.
Court hearing.
If the order is granted, arrange for it to be drawn up and sealed.
Serve the order on the respondents. Serve personally to ensure the order may be enforced by committal proceedings.
For a more detailed summary of this procedure, see Practice note, How to make an interim application (www.practicallaw.com/7-204-0114).
Complete the application notice Form N244 (www.practicallaw.com/8-205-6543). In the Commercial Court, use N244 (CC) (www.practicallaw.com/0-506-7561), and Form 16A in the County Court.
Prepare witness statement in support (see Practice note, Norwich Pharmacal orders: an overview, Evidence to be submitted).
Draft the order.
Liaise with the court to arrange the hearing.
If there is time before the hearing, file copies of application notice, evidence and draft order at court, and pay current court fee (see High Court fees: quick guide (www.practicallaw.com/3-205-8040)). If not, the order must include an undertaking to do this as soon as possible after the hearing.
Unless the application is secret, give the respondent "informal notice" of the application by phone or fax. Tell them when and where hearing will take place. Provide copies of application notice, evidence and draft order if appropriate.
Court hearing. If informal notice has been given, the respondent may attend.
If the order is granted, arrange for it to be drawn up and sealed.
Serve court order on respondent, together with application notice and evidence if not provided previously. Serve personally to ensure the order may be enforced by committal proceedings.
A return date hearing will then take place at which the court will decide whether to continue, vary or discharge the order.
Where compliance with the order may be enforced by committal proceedings, CPR 81 is relevant.
Where an NPO is sought by issuing a Part 8 claim form, see CPR 8 and PD 8A generally.
See also:
Admiralty and Commercial Courts Guide (www.practicallaw.com/2-205-4009) section B.5.
Chancery Guide (www.practicallaw.com/6-205-4012) sections 2.14 - 2.21 and 6.7.
Queen's Bench Guide (www.practicallaw.com/2-205-4014) sections 4.3 and 6.7.
Technology and Construction Courts Guide (www.practicallaw.com/9-205-4015) section 3.3.
Where an order is sought by issuing an application notice, see CPR 23 and PD 23A generally. See also:
Admiralty and Commercial Courts Guide section F and PD 58.13.1 - 58.13.4.
Chancery Guide section 4.2 and chapter 5.
Queen's Bench Guide section 7.12.
Procedural time periods depend on the procedure being followed. See the section, Where are the court rules?
Unless there is a need for secrecy or urgency, an application should be made on notice to the respondent. It is good practice to request voluntary disclosure before commencing court proceedings.
The draft order should set out clearly the documents or categories of document that are being sought from the respondent, and the time within which the respondent must provide those documents.
The order should include a penal notice prominently endorsed on the front page. If it does not, the order may not be enforced by way of committal proceedings (CPR 81.9(1)).
An order may include a "gagging order", that is to refrain the respondent, for a specified period of time, from informing anyone about the application or about the fact that information is being provided to the applicant.
The applicant may be able to recover his costs of the application as damages in subsequent proceedings against the wrongdoer.
If you are the respondent or acting for one, consider whether there are any grounds to vary or challenge the order, or to withhold disclosure on the grounds of privilege against self-incrimination. (See Practice note, Privilege against self-incrimination: an overview (www.practicallaw.com/4-205-5300).)