Norwich Pharmacal Orders – Identifying the Anonymous

Have you been 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 voluntarily.  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.

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

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.

We are regularly instructed to seek Norwich Pharmacal Orders in the High Court.  If you wish to proceed to make an application we will review the evidence and prepare the necessary paperwork (a witness statement, supporting documentary exhibits, a claim form and a draft order), correspond with the intermediary/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 £5,000-10,000 plus VAT (plus a £646 court fee) where the application is uncontested (subsequent applications are typically significantly cheaper as much of the evidence can normally be reused).  If proceedings are contested (i.e. the respondent objects to an order being granted or does not cooperate) then costs are likely to be significantly higher – although a respondent who has unreasonably opposed an application may be ordered to pay some of your legal costs.

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 (for example, data subject access requests or third party disclosure applications).   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, but will typically be modest.

The short answer is no.  Whilst in a high proportion of cases, information disclosed under a Norwich 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 may 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).