Online Publication Claims: Norwich Pharmacal orders and Jurisdiction Issues – Kirsten Sjøvoll

26 10 2017

Norwich Pharmacal orders may be made against individuals or companies who are not guilty of any wrongdoing but who are involved in that wrongdoing and can provide relevant information to an intended claimant. Norwich Pharmacal orders are now commonly sought against ISPs in order to compel disclosure of information held by them about their users.

If an anonymous user publishes material which is defamatory, private or otherwise unlawful then a Norwich Pharmacal order is likely to be the only effective way of obtaining information which may disclose his or her identify. Internet companies will not provide this information without a court order.

However, a number of jurisdictional issues arise in the context of Norwich Pharmacal orders against ISPs to identify anonymous wrongdoers.

The reason for this is twofold. Firstly, the person or persons who are the ‘ultimate wrongdoer’ are unknown. While there may be some clues as to their location, it will often be very difficult to know whether the offending posts were published by someone who is present within the jurisdiction. Secondly, the party against whom the order is sought may be based out of the jurisdiction. This will be the case in respect of  Google, Apple and Microsoft, which are all based in the United States.

When claimants first started using the Norwich Pharmacal jurisdiction against Internet corporations, the courts were generally unconcerned with matters of jurisdiction. This was the case, for example, in Applause Store Productions & Firsht v Raphael ([2008] EWHC 1781 (QB) [10]).), one of the first Norwich Pharmacal orders granted against Facebook. The order required the disclosure of registration details, including the e-mail addresses and the IP addresses for all computers used by the owner of those e-mail addresses which had accessed Facebook. The court took a similar approach in the case of G & G v Wikimedia Foundation Inc ([2009] EWHC 3148 (QB)), where an order was made to identify an anonymous editor of a Wikipedia page who had uploaded private information about the claimants.

This approach has been subject to closer scrutiny in more recent cases. In Lockton v Persons Unknown and Google Inc [2009] EWHC 3423 (QB). the court questioned whether it had jurisdiction to make an order against a company based in the United States without a place of business in England. The claimant was seeking to identify the sender of anonymous emails, which it claimed were defamatory and contained private and confidential information. The claimant faced two difficulties:

  • The general rule is that it is vexatious to join a defendant solely for the purposes of obtaining disclosure (Unilever v Chefaro Proprietaries [1994] FSR 135)
  • In order for the court to have such jurisdiction the claimant must bring the claim within one of the “gateways” in PD6B, para 3.1.

In Lockton, the applicants contended that the court could draw an inference that the anonymous sender of the e-mails was in the jurisdiction and that, once identified, service could be effected domestically. In relation to the two issues identified in the previous paragraph it was argued that Norwich Pharmacal relief was “substantive relief” and did not, therefore, offend against the rule that a party could not be joined solely for the purposes of disclosure.  Further, it was said that Google Inc. was a “necessary and proper party” for disclosure of the information needed to identify the defendant and that service out of the jurisdiction could be ordered under PD6B para 3.1(3).  Eady J accepted these submissions, granted permission to serve out and made the Norwich Pharmacal order.

Until recently, Lockton provided a clear authority for those seeking Norwich Pharmacal orders against ISPs based outside of the jurisdiction. Many such orders were obtained and were usually not opposed by companies such as Twitter and Google which agreed to comply with their terms as when they were made.

But this approach was questioned in the case of AB Bank Ltd v Abu Dhabi Commercial Bank PJSC ([2017] 1 WLR 810).  The applicant was a Bangladeshi bank and the respondent a bank based in Dubai. The claimant had been defrauded out of several million dollars by a third party and sought a Norwich Pharmacal order on the basis that the respondent had knowledge of where the money had gone. Proceedings were to be issued in England. A Norwich Pharmacal order was made without notice and the respondent applied to set it aside.

The applicant had relied on three jurisdictional gateways:

(1)   where a claim is for an interim remedy under s. 25(1) of the Civil Jurisdiction and Judgments Act 1982 (PD 6B, para. 3.1(5)),

(2)  where a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction (PD 6B, para. 1(2)) and

(3)  where the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim (PD 6B, para. 1(3)).

The Judge rejected the application under all three gateways.

As to the first gateway, the Judge held that Norwich Pharmacal relief was a self-standing claim rather than a form of interim relief.  This is consistent with the decision in Lockton.

As to the second gateway it was held that the order did not require the respondent to take any steps within the jurisdiction – as it could obtain the information in the UAE and provide it in the UAE or Bangladesh. The position would have been different if the order had required the provision of the information to the applicant’s solicitors in England.

As to the third gateway, the Judge held that as no allegation of fraud was being made against the respondent who was not alleged to be a “necessary and proper party” to the action alleging fraud ([19]).  The Judge declined to follow Lockton.

The Judge’s reasoning on this point is difficult to follow as it is not a requirement of PD 6B para 3.1(3) that the claim against the person to be served is a “necessary and proper party” to a claim based on the same cause of action.  Furthermore, CPR 7.3 provides that a claimant may use a single claim for “to start all claims which can be conveniently disposed of in the same proceedings.  Such claims may be tried separately (See S Bushell, “Should Norwich Pharmacal have extra-territorial reach?” (2017) 133 LQR 188-191) This provision does not seem to have been considered by Teare J.

As a general rule, where there are two conflicting decisions of the High Court, the later one should be followed if it was reached after full consideration of the earlier decision – unless the third judge is convinced that the second was wrong in not following the first (See Colchester Estates (Cardiff) v Carlton Industries [1986] Ch 80, 85),  It is arguable that AB Bank is indeed wrong on the “necessary or proper party” point and should not be followed.

In any event, the AB Bank case should not present difficulties for claimants seeking Norwich Pharmacal orders against providers such as Google or Twitter because the applicant can satisfy the requirements of PD6A para 3.1(2) (“claim for injunction ordering the defendant to do an act within the jurisdiction”) by seeking an order that the information be delivered to solicitors in England and Wales.  In this way, Norwich Pharmacal orders can still be obtained against international internet companies to obtain information which may identify a person who has posted defamatory, private or harassing material.

 Kirsten Sjøvoll is a member of Matrix Chambers and an author of Online Publication Claims: a Practical Guide. 

This is an edited extract from Chapter 3 of the book which will be published on 9 November 2017.


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