What is a Norwich Pharmacal Order?
In essence, a Norwich Pharmacal Order ("NPO") is an order for disclosure from an "innocent" third party in order to facilitate or support litigation. They derive from the English House of Lords' authority in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] A.C. 133, [1973] UKHL 6. An NPO can be sought in situations where a wrongdoing has occurred, but the identity of the wrongdoer is unknown, or more usually in the BVI, to obtain information held by a person innocently mixed up in the wrongdoing, such as a registered agent. They may also be used to obtain information to aid in the execution of judgments.
How can an NPO be obtained?
In Al Rushaid Petroleum Investment Company & Another v TSJ Engineering Consulting Company Limited BVIHC (Com) 2010/37 at paragraph 18, Hariprashad-Charles, J., held that three conditions should be satisfied:
- there must be an apparent wrong carried out, or arguably carried out, by an ultimate wrongdoer;
- there must be a need for an order to enable action to be brought against the ultimate wrongdoer; and
- the person against whom the order is sought must:
- be mixed up in it so as to have facilitated the wrongdoing; and
- be able, or likely to be able, to provide the information necessary to enable the ultimate wrongdoer to be sued.
The court is also likely to consider the principle of necessity. In UVW Applicant v XYZ (A Registered Agent) Respondent BVIHC (Com) 2016/108, Wallbank, J., held that this meant asking whether it would be just and convenient for the relief to be ordered in the interests of justice. The court referred to Macdoel Investments v Federal Republic of Brazil 2007 JLR 201, where it was held that; "the determinative question in any particular case is whether justice requires discovery to be ordered." Wallbank, J., concluded that "the Applicant [of an NPO] need not be put to complex, costly and potentially nugatory procedures before being accorded Norwich Pharmacal relief".
It is important to note that an NPO is not considered a remedy of last resort (see Campaign Against Arms Trade v BAE Systems Plc [2007] EWHC 330 (QB)). That said, it should still be noted that the court ultimately retains discretion as to whether to grant an NPO. It will consider factors such as the burden of a respondent complying with the order, the alternative remedies available, the respondent's duty of confidentiality, the competing interests of the parties and, of course, the public interest.
Registered agents as respondents to an NPO application in the BVI
A BVI company is required to have a registered agent (unless it is in insolvent liquidation). Registered agents are essential, as they hold the majority of BVI companies' corporate documents. These are likely to include the register of directors, register of members, copies of notices and other documents filed by the company with the Registry. In some instances, they may also hold financial information.
The nature of their role means that registered agents are often innocently 'mixed up' in cases involving their client companies.
Practical steps before making an NPO application
It is very important that an applicant for an NPO considers obtaining a seal and gag order before making an NPO application. This may be necessary to ensure that the alleged wrongdoer is not 'tipped off'. If a seal and gag order is not obtained, a registered agent (for example) may be under an obligation to inform its client (who may be the alleged wrongdoer) of the proceedings. This potentially increases the chance that the defendant may take steps to frustrate the claim by, for example, dissipating assets.
Is there a requirement to notify the respondent of an NPO application?
In the normal course, notice is to be given to the respondent (i.e. a registered agent). However, in cases of urgency or special circumstances, an NPO application can be made ex parte (or without notice).
It is important to bear in mind that a duty of full and frank disclosure applies to ex parte applications. This means that the applicant is under an obligation to notify the court of any factors or evidence they are aware of that militate against the making of the order.
Who covers the costs of an NPO application?
The BVI High Court retains discretion with regards to the costs of an application. However, regardless of the outcome of an NPO application, the applicant is likely to be ordered to pay the respondent's legal costs, as well as the respondent's costs of complying with the order.
Conclusion
Bedell Cristin's Litigation Team in the BVI has considerable experience of NPO applications, and it would be our pleasure to assist you. If you have any queries, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.
