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Norwich Pharmacal Orders - Identifying the Anonymous

An order to identify the anonymous

Have you being defamed on the internet by an anonymous blogger or harassed by someone unknown?  If so, we may be able to help you identify them.

In many instances, the wrongdoer will have used the services of an intermediary and left a digital footprint that could lead to their identification.

Intermediaries include email providers, social media companies, web hosting companies, telecommunications companies and internet service providers.  Where accounts are set up or used, even pseudo-anonymously, these parties typically gather a large amount of data.  This might include names, email addresses, telephone numbers, addresses and payment information.  Even where this information does not exist, or has been falsified, there is a good chance that there will be a record of IP addresses used by the wrongdoer.

Intermediaries will typically refuse to handover information voluntarily and will normally require a court order.  There are sound reasons for their reluctance to assist – they are likely to be under a duty of confidence not to disclose such information voluntary.  Giving out information could put them in breach of the UK General Data Protection Regulation ('UK GDPR')/Data Protection Act 2018 and the law of confidence and expose them to civil liability.  This is where Norwich Pharmacal Orders come into play.


What is a Norwich Pharmacal Order?

A Norwich Pharmacal Order is an order which requires a third party who is ‘mixed up’ in the wrongdoing (albeit normally innocently) to disclose information as to the identity of the wrongdoer.   The term derives from the name of the case that established the principle that a court could make such orders: Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133.

The purpose of the order is to allow a prospective claimant to obtain the relevant information to take action against someone who is committing a wrongful act which infringes their legal rights.

Despite their obvious usefulness in the context of media and communications law, the application of these types of orders is widespread and can be sought in various legal scenarios (for instance, against banks to establish the name of a recipient of unlawful funds).


How do I seek a Norwich Pharmacal Order?

You will need to make an application in the High Court and support it with evidence.  We can guide you through this process, draft the relevant documents and attend any court hearing.

You should preserve any documents, correspondence or web printouts that may be relevant.  If you have already made attempts to find out the identity of the prospective defendant via conventional channels then you should also retain any documentation that demonstrates this, e.g. emails or letters.

There are three conditions which you will need to satisfy the Court of before it will consider granting such an application:-

  1. There is an act of wrongdoing which has been or has arguably been committed by an ultimate wrongdoer;
  2. There must be a need for the order to enable you to take action against this unknown person.  The redress sought does not necessarily mean instigating civil legal proceedings although that will often be the logical consequence; and
  3. The third party against whom the order is sought is mixed up in the wrongdoing so as to have facilitated it and is able/likely to be able to provide the necessary information for the wrongdoer to be pursued.   In the scenario of an anonymous blog on a web forum, this may be the company hosting the website.

Even where this test is met, Norwich Pharmacal Orders are discretionary and there is no obligation on the Court to grant them.  We will let you know at the outset the likelihood of an application succeeding.

Where the Respondent is based overseas and does not cooperate there is a degree of legal uncertainty as to the power of the Court to compel it to provide information (there are opposing decisions of the High Court on this point).  This situation does not arise very often, but where it does an alternative is to seek an order in the relevant foreign jurisdiction.  Where this is the USA, we can assist you with this process.


How can our Norwich Pharmacal Order Solicitors help?

We are regularly instructed to seek Norwich Pharmacal Orders in the High Court.  If you wish to proceed to make an application we will prepare the evidence (draft a witness statement and preparing exhibits), correspond with the intermediary (referred to a ‘the Respondent’), lodge an application with the court and attend any hearing.

We will write to the Respondent as a first step to ascertain whether they hold potentially relevant information and to seek their confirmation that they will not oppose the order (most will adopt a ‘neutral’ stance and defer to the Court).

The costs involved in us bringing Norwich Pharmacal proceedings is typically in the region of £6,000 plus VAT (plus a £569 court fee) where the application is uncontested.  If proceedings are contested (i.e. the respondent objects to an order being granted or does not cooperate) then costs are more likely to be in the region of £15,000 plus VAT.

A Respondent to a Norwich Pharmacal application is entitled to seek their costs of responding to the application and complying with any order from you, although in practice they often don’t and where they do, the costs tend to be modest.

Any costs you incur in seeking a Norwich Pharmacal Order can ultimately be sought from the wrongdoer in a substantive claim (although there is never any guarantee of recovery).

If you are unsure whether it is necessary or desirable to seek a Norwich Pharmacal Order, then we recommend a preliminary consultation.  A consultation will help you understand the legal and practical issues relating to your case and allow you to make an informed decision about what action to take.  There may be other options open to you beyond a Norwich Pharmacal Order.   The cost of a consultation will depend on the factual and legal complexity of the matter and, in particular, how much paperwork you require us to consider ahead of the meeting.  In relatively straightforward matters, the cost may be as low as £600 plus VAT.

Is a Norwich Pharmacal Order guaranteed to identify a wrongdoer?

The short answer is no.  Whilst in a high proportion of cases, information disclosed under a Norwhich Pharmacal Order will identify a wrongdoer, this cannot be guaranteed.  This is because the information held by intermediaries may be incomplete or the wrongdoer might have successfully covered their tracks.  However, where a party is not immediately identified the information disclosed will often assist in narrowing down a suspect and/or provide the basis for seeking a further order that will identify them (e.g. where an IP address identifies that the wrongdoer is a customer of a telephone company).

Why instruct Brett Wilson LLP?

Our specialist defamation solicitors have extensive experience in obtaining Norwich Pharmacal Orders for clients.  This is typically done without the engagement of counsel which, where you have competent solicitors, is normally costly and unnecessary.

As well as being listed in the prestigious Legal 500 and Chambers and Partners directories as a leading firm in the fields of defamation, privacy and reputation management law, partners Iain Wilson, Max Campbell and Tom Double, together with solicitor Elisabeth Mason, are all individually recognised as leading individuals.  Most importantly, we receive excellent feedback from our clients and contemporaries.

Litigation can be stressful, time consuming and costly.  Therefore at the outset of your case we will conduct a cost benefit analysis with you. We will talk you through this process. We offer honest and pragmatic advice to our clients.  We will always consider alternative options.

Contact us

To arrange a consultation or to find out how we can support you, please send us an emailcomplete our online enquiry form or call us on 020 3813 5135.

 

Please note that we do not undertake civil litigation on a legal aid or conditional fee basis.  Information on legal aid can be found at the Government’s benefits and credits website by clicking here.  

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