A party does not always have all of the necessary information available to make an informed decision to start a lawsuit. This can arise where anonymous and defamatory e-mails have been sent, where a device that may infringe a patent is not publicly available, or where financial records that demonstrate the nature and extent of a fraud are exclusively in the hands of a bank.

Courts have fashioned a mechanism to compel innocent third parties to provide documents and information to a potential plaintiff for the purposes of starting a lawsuit. This remedy is available where the applicant believes it has been wronged and needs the third party's assistance to determine how to pursue its legal remedies.

Commonly known as a Norwich order, this procedure is a valuable tool in litigation where critical information is unknown and is necessary to properly consider whether litigation should be commenced.

Taking its name from Norwich Pharmacal Co. v. Commissioners of Customs & Excise,¹ the original Norwich order permitted a pharmaceutical company to obtain the identity of a party secretly importing the company's drug, which was patent-protected, from the customs authorities. In requiring the third-party customs authorities to disclose the identity of the unknown drug smuggler, the House of Lords stated: "A person who gets mixed up in the tortious acts of others so as to facilitate their wrong-doing...may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers."

Canadian courts have imported the Norwich order. When faced with an application for a Norwich order, the court will consider whether:

(a) the applicant has shown a valid, bona fide or reasonable claim;

(b) the applicant has established that the third party from whom information is sought is somehow involved in the acts complained of;

(c) the third party is the only practicable source of the information; and

(d) the interests of justice favour the obtaining of disclosure from the third party.

Norwich orders have been frequently granted where a bank is in receipt of funds allegedly procured by fraud. In such a case, the Court has held that the bank is involved in the case because without its involvement the wrongful receipt and possible transfer of funds could not have occurred. It is the confidential information possessed by the bank that will lead the applicant to the information required to determine whether a legal proceeding is appropriate.

Norwich orders have also been granted to obtain the identity of persons using Gmail, Google's free, Internet-based e-mail service, to send anonymous and defamatory e-mails. As with the banks, there is no claim that Google or the Internet service provider is complicit in the wrongdoing, rather the facilitation of the anonymous communications amounts to an involvement beyond being a mere witness. Particularly in cases such as this, it is unlikely that the applicant could ever learn the identity of the potential defendant by any other means than disclosure from Google and/or the Internet service provider.

Norwich orders are not granted lightly. The court is required to balance the benefit to the applicant of revealing the desired information against the prejudice to the alleged wrongdoer in releasing the information. The Court will consider the nature of the information sought, the degree of confidentiality accorded to the information by the party against whom the order is sought, and the degree to which the requested order curtails the use to which the information can be put. Courts will also consider constitutional issues, such as freedom of expression, when faced with such a motion.

Lawyers at Bennett Jones have considerable experience in obtaining Norwich orders in a broad range of matters.

Notes

1. [1974] A.C. 133 (H.L.) at 175