NORWICH PHARMACAL ORDERS AND DIGITAL ASSETS IN IRELAND Authored by: Conal O’Doherty, Senior Associate, and Bébhinn Bollard, Partner, McCann FitzGerald
With the increase of fraud in the crypto world, information on the identity of a wrongdoer can be critical in tracing missing assets. Norwich Pharmacal Orders are a useful tool in obtaining information from an innocent party caught up in a fraudulent act or wrongdoing. The jurisdiction has recently been exercised in Ireland in cases involving digital assets. Origins and Test for Norwich Pharmacal Relief Norwich Pharmacal relief originates from Norwich Pharmacal v Customs and Excise Commissioners.(1) The plaintiffs in this case initiated proceedings against the Customs and Excise Commissioners for the purposes of revealing illicit importers who they alleged were infringing their patent. The United Kingdom House of Lords held that a party which has been innocently mixed up in wrongdoing is obliged to disclose relevant documents or information, if they have facilitated the wrongdoer, even in circumstances where their conduct or connection to the third party’s alleged wrongdoing is entirely innocent. The House of Lords in Norwich Pharmacal held that the applicant must satisfy the below test for the court to grant the relief: 1.The applicant must demonstrate a reasonable basis to allege that a wrong has been committed; 2.The disclosure of information or documents from the third party is required to take action against the wrongdoer; 3.The respondent is involved in the wrongdoing so as to have facilitated it, even if innocently, and is also in a position to provide the requested information; and
The leading Irish authority for Norwich Pharmacal relief, is the Supreme Court decision in Megaleasing (3) UK Ltd v Barrett. In that case, the Supreme Court took a restrictive view as to the type of information which could be made available to the applicant, confining it to the identity of the wrongdoer only. Other common law jurisdictions, including the UK, adopt a less restrictive approach and the information which can be obtained from a defendant can be more extensive. The recent Irish High Court decision in ESB v Richmond Homes and Arkmount Construction Limited is the first Irish decision in which the scope of a Norwich (4) Pharmacal Order has been widened. Dignam J. ordered the disclosure of the names of the alleged wrongdoers, the amount of money alleged to be paid and the date of payment. The High Court held that it was satisfied there was “clear proof of wrongdoing” by persons other than those names already provided by the Defendants and the case involved “very grave” allegations about improper payments for the provision of what is a public utility. The High Court held that in a case which is based on the making and receipt of improper payments, the date and amount of each payment is the “bare minimum” required to be able to enable the plaintiffs to initiate proceedings.
4.The order is necessary in the interests of justice. In Doyle v The Commissioner of An Garda Síochána, the Irish Supreme Court held that the applicant must be able to show that they have suffered a legal wrong and bring evidence and agreed facts to the attention of the court. (2)
(1) [1974] A.C. 133 [2] [1999] 1 IR 249 [3] [1993] ILRM 497 [4] [2023] IEHC 571
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