Norwich Pharmacal order (“NPO”), has its roots in the known UK House of Lords case of Norwich Pharmacal Co ν. Commissioners of Customs and Excise [1974]. It requires a party to disclose certain documents or information to the applicant. NPOs are commonly used to identify the proper defendant to an action or to obtain information to plead a claim.
The General Test applicable to all orders:
The precedent set in the case of Odysseos v. Pieris Estates Ltd and Another (1982) 1 CLR 557 states that Section 32 of the Courts of Justice Law (14/60) confers power on the Court to grant an injunction "in all cases in which it appears to the Court just or convenient so to do". The following conditions must also be satisfied:-
"(a) A serious question arises to be tried at the hearing.
(b) There appears to be "a probability" that the plaintiff is entitled to relief and, lastly,
(c) it shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction."
The general principles for issuing Court orders in Cyprus are also pertinent and can be found in another short article linked at the end below.
The special conditions required specifically for a Norwich Pharmacal Disclosure Order
In addition to the general conditions, the Applicant must additionally prove in Court that:
(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
(ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
(iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.»
Norwich Pharmacal relief is not generally available against a Respondent who is likely to be a party to the potential proceedings. Given that such orders fall within the complete discretion of the Court, they shall only be granted if the Courts deem it proper and necessary in the interests of justice.
Where the above are satisfied, NPOs / disclosure orders could be sought against any type of parties including auditors, accountants, service providers, director or company secretaries government departments, banks, telephone service providers.
Gagging order – Where appropriate, the Court may issue in parallel a gagging order against the Respondent in order to prevent them from informing third parties or the end party that a disclosure order has been issued, providing the Applicant with the necessary time to peruse the disclosed materials and decide further steps.
Imposition of conditions - The court may if it deems it necessary set conditions so that there is absolute clarity regarding the allowed use of the disclosed documents and information by the Applicant.
The application is usually done ex parte (without notice) so as to avoid giving the opportunity to the other side to dissipate or destroy the information sought. The Court must be informed that the Applicant exhausted all other ways to acquire the sought materials from all available legal venues and that the only way is through the issuance of the Court Order. Additionally the Applicant should clarify exactly as to what their intentions are and how they are to use the information sought. In addition they must state clearly their readiness to provide a guarantee covering any damage or costs caused to the Respondent as a result of the order.
Legal Costs – the general rule is that the Applicant must pay the costs of the Respondent arising out of the need to conform with the disclosure order. Where however the Respondent is somehow mixed up and or facilitated the third party wrongdoing, then the Court has discretion as to who should pay the legal costs.
For more details or advice regarding Disclosure Orders / Norwich Pharmacal Orders, contact Phoebus, Christos Clerides & Associates LLC at info@clerideslegal.com or con.clerides@clerideslegal.com.