How to obtain information from a third party
Recently, a party wanted the Commercial Court to order a company to disclose information it held relating to a former employee.
Beware. The court said the party seeking the information must provide full and frank disclosure, and show a legitimate purpose. It later transpired the party had not disclosed an ulterior motive. The order was discharged which meant the applicant did not receive the information it wanted relating to the third party.
Importance of the decision from the court on how to obtain information from a third party
The decision affirms that to secure disclosure of information to be used in a court case the applicant must:
- Comply with the court’s guidance; and
- Provide full disclosure which includes satellite litigation whether contemplated or not.
If the applicant does not, then the applicant risks cost penalties and a refusal from the court to force the disclosure of information requested.
How to successfully obtain information from a third party
Before going to court, an applicant might want information from a person or organisation that holds information about the defendant. The applicant needs that information to win their case.
So, the applicant can apply to the court, to have the court order the person or organisation that holds the information to disclose information about the defendant. Then, the applicant might use the information to assess if the defendant is the “true defendant”, or should chase someone else.
This type of court order forcing disclosure is called a Norwich Pharmacal Order, “NPO”, after the case in which the order was first granted.
The use of Norwich Pharmacal Orders to obtain information from a third party in litigation proceedings
NPO’s are increasingly common. For example, an applicant may apply for an NPO against Google. Google might possess information relating to a potential defendant such as an:
- Address for the owner of a domain name; or
- IP address for someone who posted defamatory content which damaged the applicant’s goodwill.
Once Google provides this information, the applicant can commence litigation against the defendant. Since the 2013 Defamation Act, numerous so-called “Google litigations” have predominantly targeted anonymous bloggers.
The facts of this case
The applicant applied for an NPO against a third party because it thought the third party may hold evidence relating to email hacking and dishonest conduct.
The ulterior motives
The applicant sought information from the third party to use in its own fraud case involving the defendant – a completely separate case to the case in question. Also, the applicant was fishing for information it could use to tarnish the witness for the other side in the case in question.
The court’s NPO discretion
The NPO was originally granted. The application was made without notice. The third party then sought to have the NPO discharged.
The third party alleged the applicant’s NPO application was an abuse of process to gain leverage for a separate case. The third party argued that:
- The applicant had failed to make full and frank disclosure when making the without notice application,
- There was an additional claim already in the court system, which was material;
- The applicant’s purpose in seeking the NPO was illegitimate,
- It was to obtain information for a different purpose, i.e. the claim against the defendant in the separate case.
The court’s decision on how to obtain information from a third party
The court strictly applied the duty of the applicant to provide full and frank disclosure. The judge said the NPO application was:
- An abuse of process,
- not appropriate for the court to exercise its discretion;
- An aggressive approach funded by the applicant to obtain information for a collateral purpose.
The court’s commentary
Furthermore, the court said even if the information was disclosed it would not benefit the applicant as far as the case in question was concerned.
Any disclosure must be used for a proper purpose. Another claim or potential claim is not a proper purpose.
Gannons’ comment on how to obtain information from a third party
Full and frank disclosure is not a new requirement. However, in this case the developments were that the court discharged the NPO:
- After it had been granted; and
- Once it had transpired that the applicant had a collateral purpose in the fact it was involved in a separate claim against the third party.
Applicants must disclose why they want the information. The court then determines if the applicant has a “legitimate purpose”.
The key point to take away for claimants is that they must be transparent. This is even before making a claim. A collateral purpose will always discredit a claimant once the duty to disclose arises.
Alex Kleanthous runs the commercial litigation team at Gannons. Alex takes instructions from potential claimants seeking information from third parties, and those refusing the applications.