Knowledge

The High Court of England and Wales recently made disclosure orders in favour of TV personalities Ant and Dec against their former art dealer to allow them to obtain information on the flow of profits arising from the sale of Banksy artwork. The TV pair had previously sought the information from the dealer voluntarily, who allegedly initially refused but said they would comply with a court order.

This type of application is commonly known as a Norwich Pharmacal application, where information is sought from a third party mixed up with or involved in wrongdoing, whether innocently or not.  Applications of this type are useful in connection with, or alongside, applications for injunction relief, as part of multi-jurisdictional proceedings, and are also available pre- and post-judgment.

The applicant must present a good arguable case that a legal wrong has been committed against them, that the party they are seeking the information from is involved in the wrongdoing and possesses (or is likely to possess) the information, and that the relief sought is necessary and proportionate in all the circumstances.

Norwich Pharmacal relief is equitable relief and so the Judge has discretion in granting the order. An application can be made with or without notice and the applicant must provide full and frank disclosure in support. Typically, an applicant pays the costs of the party who must comply with the order, including their legal fees.

In Guernsey, Norwich Pharmacal relief is available, and the Royal Court (the "Court") often looks to both English and Jersey jurisprudence for guidance. 

The most recent decision on Norwich Pharmacal relief in Guernsey restated the test that an applicant is required to meet:

• the disclosure must not be for the purpose of obtaining pre-trial discovery;
• the third party must have become involved in the wrongdoing;
• the applicant must identify the wrongdoing; and
• the conduct must be a civil or criminal wrong.

The Court stated that an application for Norwich Pharmacal relief isn't a prerequisite of civil proceedings, that the information that can be sought can be wide-ranging and, crucially, that the remedy is discretionary, so applicants should be aware that success is not guaranteed. The Court will not entertain fishing expeditions and applicants will be expected to demonstrate how and why the relief is essential and necessary to assist in achieving justice. 

For more information on Norwich Pharmacal relief in Guernsey, please contact one of the Bedell Cristin Guernsey Litigation team.