Norwich Pharmacal Order

Norwich Pharmacal Order allows the litigation party to request for disclosure of the documents and information involved in the case from a third party (a company or individual who is innocent but connected with the illegal conduct). Although the third party is not the perpetrator, the court has the right to request the third party to disclose information because of his/her linkage with the offending behaviour.

The Norwich Pharmacal Order was originated from Norwich Pharmacal Co. & Others v Customs and Excise Commissioners [1974] AC 133 before the House of Lords. The case was about an owner who was an owner and licensor of a certain antibiotic patent discovered that an unauthorized compound was imported into the UK but was unable to know the identity of the importer. The Customs refused the party’s application to disclose the information about the importer, so the party requested the court to order a disclosure of the relevant information. Based on the equitable relief principle, the court ordered the innocent third-party to disclose the identity. The court will consider whether the document exists or whether a third party owns the document, relevance (whether the document is related to the offending behavior) and necessity (disclosure of the document is necessary to maintain justice) to balance the conflict between confidentiality and justice.

In the case of A Co v B Co [2002] 2 HKC 497, the High Court pointed out the factors that the court must consider before issuing a third-party disclosure order, they include: (1) reliable and convincing evidence to prove that serious incidents have occurred; (2) the order will or is likely to bring certain benefits to the plaintiff; and (3) the content required to be disclosed should not be too wide.

The court will also assess whether the third party is involved in the offending behavior. In the case of Danone Asia Pte Limited v SB Chow & Co., CPA & Anor [2009] 1 HKLRD 470, the court held that if a third party is only an eyewitness or a bystander, he/she is not involved and does not meet the requirements of the Norwich Pharmacal Order. That case also illustrated that the third-party disclosure order applies to non-occurring infringement liability only if the third party is the only practical source.

To apply for the Norwich Pharmacal Order, the applicant must apply to the High Court of Hong Kong in the form of an Originating Summons and make an affidavit. Since the third party is not an offender, but an innocent third party, he/she can obtain costs on an indemnity basis. The applicant should pay the third party all costs except for unreasonable costs. (See Ngan In Leng v Chu Yuet Wah (No. 1) [2013] 1 HKLRD 717). However, even if the court orders the defendant to bear the costs of the application, if the court considers that the applicant is oppressive and speculative, the court has the right to order the applicant to pay legal costs. (See Sanctuary Systems Limited v Orient International Holdings Hong Kong Co Ltd & Anor [2015] HKCFI 1007)

Besides the Norwich Pharmacal Order, applicants can also request the court to order the third party to produce documents under Cap. 4 High Court Ordinance Article 42. One party to the legal process can submit an application of disclosure, if the court believes that the third party may currently or have possessed, kept or controlled the relevant documents, it can make a disclosure order. This regulation only applies to judicial proceedings that have been filed.

When applying for the Norwich Pharmacal Order, the applicant should note that this order does not apply to require publishers to disclose the identity of the author or editor in libel cases (see the case of the House of Lords Campbell v MGN Ltd [2004] UKHL 22), criminal prosecution (Secretary for Justice v Apple Daily [2000] 2 HKLRD 704) and the court will not allow fishing discovery over the disclosure of documents (Manufacturer’s Life Insurance Co. of Canada v Harvest Hero International Ltd & Anor [2002] 1 HKLRD 828).

Norwich Pharmacal Order helps the parties to understand the issues and facts in dispute, speeding up the commencement of litigation procedures and processes.

Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

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