Originating what? How should you make an application for Norwich Pharmacal relief?

On 4 October 2024, a decision of Mr Justice Jacobs was handed down in Magomedov and others v TPG Group Holdings (SBS) LP and others. This is the second article in a short series on this judgment, which looks at the issue of originating process in relation to applications for Norwich Pharmacal relief. The background to the matter is described in our first blog, available here.

Recent case law has suggested that in order to bring an application for Norwich Pharmacal relief there must be originating process as against the respondent/s. However, the decision in Magomedov presents a change in approach by the court and potentially conflicts with the first instance decision in Towergate Underwriting Group Limited v Albaco Insurance Brokers Limited. The findings in these cases look to answer the question of when an application for Norwich Pharmacal relief can be made under Part 23 of the CPR where the respondent is not party to any proceedings. 

What do we mean by originating process?

Originating process is the means by which proceedings are commenced against a party. Previously, originating process took a few different forms, such as writs, originating summons, motions or petitions. Under the current procedural rules of the English court, we use claim forms – whether under Part 7 or Part 8 of the CPR.

What was decided in Towergate?

In Towergate, Master Matthews held that where there are no existing proceedings to which a respondent to an application for a Norwich Pharmacal relief can be joined, the Applicant must issue a claim form under Part 8 of the CPR. Master Matthews made a number of points to explain his reasoning, including the following:

1. A court can only make an effective order against someone if proceedings have first been started against them or that person has been joined into existing proceedings. Originating processes are the means of starting proceedings, and, quite simply, under CPR rule 7.2(1), proceedings “are started when the court issues a claim form at the request of the claimant.”
2. The purpose of a Norwich Pharmacal order is to obtain information to enable a claim to be made that could not be made otherwise. This aligns with the purpose of Part 8 of the CPR.
3. Certain sections of the CPR set out how civil proceedings should be conducted – for example, the rules around how documents should be served.  CPR Part 23 does not set out any such processes, which Master Matthews suggested is because it is anticipated that any application under CPR Part 23 would be made within an existing claim. This would mean that there would be no need to set out additional rules as the rules in question would have already been considered when the claim was issued. In connection with this, Master Matthews also suggested that if Norwich Pharmacal orders were intended to be an exception to the requirement for originating process, the CPR would make this clear. Since there is no such indication, the logical conclusion is that originating process is needed.

The decision in Magomedov

In his judgment in Magomedov, Mr Justice Jacobs distinguished Towergate, explaining that Master Matthews had been dealing with a case in which there had been no proceedings started at all, which was not the case in Magomedov.

He considered that where proceedings are already in existence, an application for Norwich Pharmacal relief may be made by application notice under CPR Part 23.  This is the case even if the party against whom disclosure of documents or information is sought has not been joined to the proceedings.  Jacobs J drew a parallel between an application for a Norwich Pharmacal order and an application for third party disclosure from non-parties under CPR 31.17 which are made by application notice.  He said he saw no reason to differentiate between the two types of application and considered that a Part 23 application can equally be regarded as a form of originating process.

Jacobs J also pointed to paragraph 14.81 of the Chancery Guide which states that “applications for disclosure pursuant to Norwich Pharmacal… should be made by Part 8 claim form unless made within existing proceedings when an application can be made under Part 23.”  Jacobs J emphasised the addition of “unless made within existing proceedings” to the Chancery Guide.  On his reading of the Guide, he finds that as long as there are existing proceedings a Claim issued under Part 8 is not necessary, even if the respondent to the relief sought is not a party to those proceedings.

What does this mean for practitioners?

Jacobs J’s decision in Magomedov diverges from some of the recent thinking on this point and suggests that an application for Norwich Pharmacal relief can be brought against an innocent third party by way of a Part 23 application without the need to join them into existing proceedings or serve them with any of the other statements of case in those proceedings.  Some practitioners will find the decision in Magomedov helpful, but there is clearly some tension between it and the decision in Towergate which may take a trip to the Court of Appeal to iron out.

Further information

If you have any questions, please contact Laurence Clarke or Phoebe Alexander in our Dispute Resolution team.

About the authors

Laurence Clarke is a senior associate in the Dispute Resolution Team. He has been recognised as a leading associate in both commercial litigation and civil fraud in The Legal 500.

Phoebe Alexander is an Associate in the Dispute Resolution team. She has experience acting for both corporate and individual clients on a broad range of disputes, including complex multi-jurisdictional litigation involving allegations of fraud and conspiracy, general commercial and contractual matters, and media-related disputes involving reputation and privacy issues.