Getting Information From A Third Party
Are you trying to recover an asset that you hold legal title to, but the asset is untraceable?
Does a guarantor, third party, or other individual hold information about the location or whereabouts of your asset, but they are refusing to provide information to you?
A Norwich Pharmacal Order may assist you to obtain the information you require to locate your asset.
What is a Norwich Pharmacal Order?
A Norwich Pharmacal Order (‘NPO’) (coined as such from the case of Norwich Pharmacal v Commissioners of Custom & Excise [1974] UKHL 6) is common law right to, in certain circumstances, seek disclosure of information and/or documentation from a third party caught up, innocently or otherwise, in the “wrongdoing”.
What type of scenario?
A debtor company may have removed assets from premises to keep them out of reach of the creditor who holds legal title and into the hands of a third party. A director or other person within the company or third person with innocent possession of the assets may have knowledge of this.
The creditor will want to know how the assets came to be in the possession of the third party and their identity. Often there is an individual who, whilst may not be a defendant to any intended claim, is ‘mixed up in the wrongdoing’ and has information and/or documentation which will assist the creditor in their intended claim.
What is the test?
The test for obtaining an NPO is as follows:
- A “wrongdoing” must have been (or at least 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;
- The person against whom the order is sought must:
- be mixed up in so far as to have facilitated the wrongdoing; and
- be (likely) able to provide information necessary to enable the ultimate wrongdoer to be sued.
When can an NPO be applied for?
An NPO can be applied for prior to the commencement of proceedings or during the course of live proceedings.
In the case of the former, the norm is to issue a Part 8 claim and, in the case of the latter, to make a standard form N244 application seeking to add the third party for the purposes of the NPO.
What about costs?
The general rule is that the party seeking the NPO should pay their own (and the respondent’s) costs. This is because the respondent is normally only ‘mixed up’ in the wrongdoing and is not the ‘ultimate wrongdoer’ (of course, the party seeking the NPO can go on to look to recover these costs from the ‘ultimate wrongdoer’).
There is scope to rebut this position in circumstances where the party seeking the NPO has previously made attempts to obtain disclosure of the information and/or documentation from the respondent, who has unreasonably refused to provide this.
I’ve obtained my NPO. What if the respondent doesn’t comply?
When seeking an NPO, a request can be made for a penal notice to be attached. This imposes a criminal sanction (often committal proceedings) should the respondent fail to comply. Strong evidence of the need for this would be required in the first instance. In the alternative, it is possible to apply for this to be added to the NPO should there be non-compliance.
Can anything else be sought?
It is possible to seek that the NPO is made the subject of a ‘gagging’ order which orders the respondent not to inform the ultimate wrongdoer of the same. This can be helpful were there is concern that the respondent may ‘tip off’ or inform the ultimate wrongdoer, e.g. there is a concern that the assets may be moved on. Again, strong evidence of the need for this would be required in the first instance.
How does this assist us?
We understand how frustrating and unhelpful it is when known or unknown parties are concealing essential information. More so when valuable assets (and the best opportunity to minimise loss) are at large. Responses such as “I will not be providing that information or documentation” often make clients feel like they’ve reached a ‘dead-end’.
Often, the threat of such an order may put pressure on any potential respondent to comply ‘off the bat’. If not, obtaining an NPO means that the information and/or documentation required to progress your matter could be obtained. If this puts you one step closer to recovering an asset, it is a step worth taking!
As always, such a legal step should not be taken without obtaining advice on merits first. Please contact us on 0333 00 5200 or info@grenhalghkerr.com if you feel we can help.
Emily Davison, Solicitor
