Analysis: Norwich Pharmacal relief — broadening of the scope of relief
Mason Hayes & Curran partner Gerard Kelly and associate Ciara Browne review the first Irish judgment where the High Court’s ability to grant Norwich Pharmacal relief has been broadened beyond the scope previously identified by the Supreme Court.
The High Court has recently granted an order to the ESB to compel two construction and development companies to disclose details of wrongful payments which were allegedly made to employees to ensure that certain works were carried out. This order was made because:
- it was necessary for the ESB to get this information so that they could issue proceedings against the alleged wrongdoers; and
- the court’s power to make such an order was not limited solely to the identity of the wrongdoer in circumstances where it was appropriate for the ESB to be provided with further specific details.
The second named defendant, Arkmount Construction Limited, was constructing four housing developments in North Dublin on behalf of the first named defendant, Richmond Homes.
A senior representative of Arkmount, in early May 2022, informed an employee of the ESB that staff in the ESB Networks unit had been seeking cash payments from developers and construction companies, including Arkmount. This was in exchange for preferential treatment in the form of immediate or expedited completion of works. Internal investigations were carried out and when seeking further information from Arkmount and Richmond, it became apparent that such information was unlikely to be furnished on a voluntary basis. As a result, the proceedings were issued by the ESB in the High Court.
While some of the information initially requested was furnished by way of an order for discovery, there were a number of outstanding reliefs which were still being sought by the ESB by way of an application for Norwich Pharmacal relief.
What is Norwich Pharmacal relief?
A Norwich Pharmacal order is an order made by the court which compels the respondent to disclose certain information or documents to the applicant. This form of order is primarily sought as a means of identifying the appropriate defendant to an action. It is commonly sought against an innocent intermediary who, although not directly involved in the offending activity, holds information or documentation required for the issuing of proceedings.
Norwich Pharmacal relief is an equitable remedy and is not expressly provided for under any court rules or legislation in Ireland. This means that the court will grant Norwich Pharmacal relief on the basis of its inherent powers and only where it is deemed necessary and where the interests of justice require it.
You can read more about Norwich Pharmacal orders in our previous article, Norwich Pharmacal Relief: Uncovering the Anonymous Wrongdoer.
Arguments made by both sides
Arkmount and Richmond argued on the basis of Megaleasing UK Ltd v Barrett  ILRM 497 and subsequent cases that the power of the court in Ireland is limited to directing the discovery of documents or information which will identify the alleged wrongdoers to enable the ESB to institute proceedings against them. Alternatively, they argued that any extension this power must be incremental.
On the other hand, the ESB argued that the scope of the courts power in granting such orders was in fact broader than that and that the power should be extended.
Judge Dignam considered the scope of the order to be granted. He was of the view that the while the power established in the Megaleasing case and subsequent High Court cases was limited to permitting the making of an order compelling the disclosure of information to identify the alleged wrongdoers, an extension of the jurisdiction was not precluded in an appropriate case. Judge Dignam stated as follows:
“Any Order which goes beyond the names or information relating to the identity of the alleged wrongdoers or beyond the purpose of instituting the proceedings would amount to an extension of the jurisdiction. However, I am equally satisfied that neither Megaleasing nor those High Court cases preclude an order directing broader disclosure being made in an appropriate case, i.e. an extension of the jurisdiction. That is clear from the express terms of the judgments in Megaleasing. It also arises from the rationale behind the relief.”
Judge Dignam clarified that it would not have been possible for the High Court to make a broader disclosure order if the Supreme Court had not acknowledged in Megaleasing that there was possibility of development in the law. He also said that broader disclosure would not be possible if previous High Court decisions had had to determine the issue. He indicated that “while previous judgments undoubtedly state that Megaleasing confined the remedy to the names of alleged wrongdoers they did not in fact have to determine the issue of the scope of the remedy”.
The court did accept that any such extension must be incremental, however, irrespective of the scope of any such order, to be granted such relief, ESB had to show that:
- there was very clear proof of wrongdoing; and
- the disclosure sought is necessary.
A central part of the balancing exercise to be carried out is an assessment of the proportionality of any relief sought in addition to examining the specific facts of each case.
By way of another recent interesting example, the courts of England and Wales, which would have persuasive authority before an Irish Court, in Davidoff and others v Google  EWHC 1958 (KB) recently denied a Norwich Pharmacal order in a claim for libel and malicious falsehood. This was because the applicant had not shown that Google had facilitated the wrongdoing when they were solely the service provider for the Gmail account behind a number of fake reviews posted on TrustPilot. The wrongdoing was the use of the Trustpilot account to post the review. Google demonstrated that it was not connected to the wrongdoing as although a Trustpilot user had to register with the service using an email address, if the email account used was subsequently deactivated, that did not prevent the Trustpilot user from posting a review.
Details sought by ESB
In the ESB proceedings, the ESB sought “full details of all payments made by either of them, their respective servants or agents, to any employee, agent, contractor and/or representative of the Plaintiffs, or either of them, other than on foot of invoices properly raised by the Plaintiffs, or either of them”. For each payment, the ESB also wanted to be provided with:
- the name(s) of the person or persons who requested the payment;
- details of what was to be done in consideration for the making of the payment;
- details of the amount paid;
- the time and date upon which such payment was made;
- the name of the person(s) to whom such payment was made;
- the method by which such payment was made;
- the place at which such payment was made; and
- the actions taken by the person(s) to whom such payment was made in connection with the payment.
It was accepted, albeit quite late in the day, that a temporal and geographic limitation should be imposed on any such disclosure of information.
The court dealt with what was being sought under two separate headings:
- names of the persons who sought and received payments; and
- other information.
The court took into consideration the strong public interest in allowing the ESB to vindicate its legal rights and in deterring similar wrongdoing in the future. In light of this, the balance favoured the making of an order that Arkmount and Richmond disclose to the ESB the names of any individuals who demanded or received payment.
In considering the other information sought, the court was not satisfied that the ESB had established that disclosure of all of the other information was necessary.
In making their case for a broader disclosure, the ESB sought to rely on the principle that full particulars of fraud must be pleaded under the Rules of the Superior Courts. The court pointed out that these obligations refer to what must be pleaded rather than what is required to institute proceedings. In light of this, it was not necessary to disclose all of the information being sought.
In making an order, the court limited the disclosure of other information to the date and amount of each payment. In addition, the order was limited to the four sites in question and from the date ESB commenced work on those sites up to the date that Arkmount and Richmond first raised the issue with the ESB.
This case confirms that a Norwich Pharmacal order can compel the disclosure of more than just the identity of alleged wrongdoers. In seeking the disclosure of additional information however, it must be shown that such information is necessary and that the order takes into account the principle of proportionality. The necessity of the information must be so that a prospective plaintiff can issue proceedings rather than pleading its claim.
In addition, it confirms the broad power afforded to the courts when granting such relief and the necessity of examining each case according to the specific facts.
That being said, it is important to note that there may be limits to the scope of relief, as can be seen from Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Ltd  IEHC 287. In that case, questions were proposed to be referred to the CJEU around whether a plaintiff could be granted such an order for the purpose of disciplinary proceedings rather than initiating legal proceedings in the courts. Ultimately the case was withdrawn so it remains to be seen as to the scope of these limitations but it is likely the same questions will arise in the future.
- Gerard Kelly is a partner and Ciara Browne is an associate in the intellectual property team at Mason Hayes & Curran LLP.