NORWICH PHARMACAL ORDER REFUSED AGAINST SERVICE PROVIDER OF MOBILE TELEPHONE SERVICES
In the recent England and Wales Court of Appeal (Civil Division) (“EWCA”) decision of EUI Ltd v UK Vodaphone Ltd [2021] EWCA Civ 1771 (“EUI v Vodaphone”), the EWCA declined to grant a disclosure of information under the principle in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 against the service provider of mobile telephone services.
Norwich Pharmacal order. An application to seek disclosure of information under the principle in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 is also commonly referred to as seeking a “Norwich Pharmacal order”.
As stated by the Singapore Court of Appeal in Dorsey James Michael v World Sport Group Pte Ltd [2014[ 2 SLR 208 (“Dorsey James Michael”) at [24], O 26A r 1(5) of the Rules of Court “… was enacted to allow interrogatories to be administered to persons not party to the proceedings before the commencement of proceedings as well. This new addition was intended to be the codification of the remedy set out in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (“Norwich Pharmacal”) when ordering discovery or interrogatories against non-parties.”
The purpose of a Norwich Pharmacal order is to enable a claimant to seek information for the purpose of identifying the person, or persons, who are potentially liable to him. As set out in Dorsey James Michael at [38] citing David Fletcher Rogers, Pre-Action Discovery (Sweet & Maxwell, 1991) at page 33, a useful general rule on the scope and purpose of the order is as follows:
“In accordance with the rules in Norwich Pharmacal, an action for discovery will be maintained and discovery granted against non-parties to the substantive action where the person against whom discovery of information is sought had himself, albeit innocently, been involved in the wrongful acts of another so as to facilitate the wrongdoing. [emphasis added]”
A Norwich Pharmacal order is therefore an important tool in litigation for the purposes of enabling a claimant to identify who may be potentially liable to him.
The facts of EUI v Vodaphone in gist. In EUI v Vodaphone, the claimant seeking a Norwich Pharmacal order is an insurance company, who believed that there may be grounds for a claim against a policy holder and the policy holder’s mother in deceit and conspiracy. As set out in [9] - [12] EUI v Vodaphone, the key issue turned on where the policy holder’s mother was located between 2 – 8 December 2019.
The defendant is the service provider for the mobile telephone and data account held by the policy holder’s mother ([13] EUI v Vodaphone).
The insurance company took up a claim against the defendant under the Norwich Pharmacal jurisdiction on the basis that the insurance company “intended to launch proceedings in the tort of deceit or conspiracy to recover excess payments made under the policy” and sought “information relating to the call records for the mobile phone and the cell site data showing the location of the phone during the period in question”. The insurance company subsequently sought to expand the categories of documents to be disclosed to include “SMS/MMS data and mobile data usage details for the relevant period”.
The defendant did not oppose the application and took a neutral position both at first instance and on appeal.
The primary argument. The primary argument relied upon by the insurance company is that service providers in the position of the defendant are not “mere witnesses”: as “[m]obile phones have enabled people to live in one place and conduct their affairs as if they are living somewhere else”, such service providers are no longer mere witnesses but amount to a party who has engaged in the wrongdoing so as to render them susceptible to the court’s Norwich Pharmacal jurisdiction (see [14] and [17] EUI v Vodaphone).
This is an innovative argument. If successful, it would expose mobile phone service providers, and other service providers that render similar services, to applications for Norwich Pharmacal orders.
Argument not accepted. However, this argument was rejected both at first instance and on appeal. Baker LJ (on appeal) held that while it is true that the phone records would assist in establishing the truth of the policy holder’s mother’s location, nonetheless, the defendant service provider “is manifestly a mere witness”.
We set out [18] EUI v Vodaphone at length below as it is important:
“18. In my judgment, Mr Higgins' principal argument is misconceived. If the claimant is right in thinking that the policy holder has fraudulently asserted that his parents moved out of their home for a period to allow him and his family to occupy the house exclusively, it is arguable that his parents were involved in the wrongdoing. But I can see no basis on which it could be said that his mother's mobile phone service provider was more than a mere witness or, in Mann J's phrase, engaged with the wrong. The fact that the phone account holder would have been able to pretend she was somewhere she was not does not draw the phone company into her wrongdoing. It is true that the phone records may assist in establishing the truth of the parents' whereabouts. But in that regard the phone company is manifestly a mere witness. Its position is no different from anyone else who may be able to provide evidence about that issue – for example, the nephew living in Milton Keynes, or the neighbours to the parents' property, or, as Lewis LJ helpfully suggested in the course of the hearing, the milkman. The phone company's position seems to me to be analogous to that of a security company which installs CCTV cameras at a property. Such cameras are also a feature of modern life. The purpose of the cameras is to detect or deter burglars who have no right to be at the property, but they may also incidentally detect the presence of the householders who have every right to be there. The security company would therefore be a witness to any unlawful activity engaged in by the householders but it would not be drawn into that activity in any way.”
(emphasis added)
Baker LJ at [19] EUI v Vodaphone also stated that given the information that is already available to the insurance company, “… I am unconvinced that the insurers require any additional information before deciding whether to commence proceedings. In any event, this argument does not alter the phone company's position as a mere witness.”
Baker LJ was also not convinced by the argument that the “policy holder and his mother would be able to concoct an explanation for the continued presence of the mother's mobile phone in her property were they to have notice of any application for disclosure after the start of proceedings” at [20] EUI v Vodaphone, and stated that in any event, such an argument does not address the limits of the Norwich Pharmacal jurisdiction.
Conclusion. EUI v Vodaphone is an important reminder that while pre-action discovery is an important tool for any litigator, it has its limits.
While EUI v Vodaphone has not been addressed in any Singapore decisions that we have come across, it is likely to be relied upon by parties in the position of, or in similar position as, the defendant service provider in EUI v Vodaphone to resist disclosure of information under Singapore’s equivalent of the Norwich Pharmacal jurisdiction in EUI v Vodaphone.
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