In an important ruling in the phone hacking litigation ( EWHC 2119 (Ch)), the new managing judge, Mann J held that Norwich Pharmacal disclosure could be ordered against the Metropolitan Police despite the fact that they did not “participate” in the original wrongdoing.
The case arose from the on-going investigation into phone hacking. It is a feature of phone hacking that the victims will rarely be aware of the fact that they are victims. As a result, the Metropolitan Police have adopted the practice of informing phone hacking victims that they have been targeted and providing some basic information about the matter. The difficulty with this arrangement is that those who are informed that they may have been victims of phone hacking are left in a position where, although they are aware they may have a claim, they lack the necessary level of detail to enable them to proceed with it, or to make an assessment of its merits.
It is for this reason that, following Operation Weeting, an agreed system was put in place to allow claimants or potential claimants to obtain the necessary information from the Metropolitan Police without repetitive applications for disclosure. This system was put in place by an Order that was consented to by News Group Newspapers and the then-claimants. Following Operation Pinetree a new order for disclosure, following roughly the same procedure, was proposed however this time News Group Newspapers did not consent.
The key issue to be decided then, was whether the claimants could obtain an ‘Norwich Pharmacal’ order for disclosure against the Metropolitan Police in circumstances where the Police had not themselves participated in or facilitated the wrongdoing, and had in fact only become involved at a much later stage.
Taking the Norwich Pharmacal decision itself as its starting point Mann J considered the traditional basis for the granting of such relief, that being;
“… if through no fault of his own a person gets mixed up in the 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. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should cooperate in writing the wrong if he unwittingly facilitated its perpetration.” 
News Group Newspapers argued that this formulation restricted the availability of Norwich Pharmacal relief to cases where the party against whom the order is sought has been mixed up in the original wrongdoing, which was not the position in the case at hand. However, as Mann J made clear, the situation is actually more nuanced; although there is a distinction between a ‘mere bystander’ who would not be subject to a Norwich Pharmacal Order, and someone who has facilitated the wrongdoing (abeit innocently) who would, it does not automatically follow that the only the only thing which can justify the making of a such an order is participation or facilitation.
Mann J found that the case of Ricci v Chow  1 WLR 1658 suggested that there is scope for flexibility in the development of the Norwich Pharmacal jurisdiction and this flexibility allowed the court to consider precisely what level of ‘involvemnet’ would be sufficient, “without being trammelled by rigid concepts of participation or facilitation” (at ). This was supported by R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs  3 All ER 9 where it was said (albeit obiter);
“It seems to me that there will be cases where there is a real difference between, on the one hand, involvement or participation and, on the other hand, facilitation. A person present and involved may be attempting to discourage or prevent the wrongful act rather than facilitating it. He may nevertheless become aware or come into possession of the very material which the applicant seeks. I do not think that the Norwich Pharmacal remedy was intended to be put beyond his reach in such circumstances.” 
Mann J also found that it was ‘highly significant’ that the Metropolitan Police were under some obligation to inform potential victims of phone hacking and held;
“In those circumstances it is not difficult to come to the conclusion that, as evidential material, the material which the MPS is prepared to make available is material that would be appropriately sought under a Norwich Pharmacal order.” 
The sole issue then was whether the Metropolitan Police had been sufficiently ‘involved’ to satisfy the Norwich Pharmacal test. Plainly, if the test was limited to participation or facilitation then it would not be met and the order sought in the present case could not been granted. However, the court found that participation or facilitation was not the sole test;
“It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things – the mere witness on the one hand, and the a person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness..” 
Mann J held that although on first blush such an analysis may appear contrary to the case law, it was in fact quite consistent with the reasoning and the recognition of the need for flexibility found in the authorities. Having established that the test was broader, Mann J turned to consider whether the involvement of the Metropolitan Police in the present case was sufficient to make it more than a ‘mere bystander’ and held that the answer was yes;
“The MPS is not like someone who happens to witness an offending act and who thereby acquires relevant information. It is someone whose duty it is to acquire information about the offending act, albeit not for the benefit of victims. That may not by itself be sufficient – I do not have to decide that. What needs to be added is the fact that the MPS has actually provided information which, if a mere witness (bystander) it would not have had to have volunteered. It did so by informing victims that they were victims, and then disclosing a limited amount of information whilst informing them that there was more. It has also indicated that it did so as a result of some sort of unspecified obligation (or feeling that it ought to) and then agreeing, in principle, that it would not resist a formal claim for the information to a greater extent and in a more durable (and reliable) form. All those factors, when combined, mean that the MPS is not a mere witness.” 
News Group Newspapers argued that the court should refuse to make the Order in the exercise of its discretion. However, Mann J was not impressed by the argument it would be more cost-efficient for phone hacking victims to plead a case first then obtain the information by usual process of disclosure and/or subpoena at trial. Thus the application was successful and the court made the order sought, subject to the issue of who pays the costs incurred by the Metropolitan Police in compiling with it being resolved.
This is an important decision that significantly expands the application of Norwich Pharmacal jurisdiction. Plainly, this opens up the potential for the application of Norwich Pharmacal orders in novel factual circumstances. Rejecting the argument that such a development would open the ‘floodgates, Mann J made it clear that the test for Norwich Pharmacal relief if not limited to circumstances where the party against whom the order is sought has facilitated or participated in the wrongdoing, although the decision does not finally resolve the question of precisely what level of involvement is required.
Eloise Le Santo is a trainee barrister at Matrix Chambers.