Reference:  EWHC 330 (QB)
Court: Queen's Bench Division
Judge: King J
Date of judgment: 26 Feb 2007
Summary: Disclosure - Non-party disclosure - Norwich Pharmacal order - 'Mere recipient' - Leaked information - Identification of source
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Instructing Solicitors: Leigh Day & Co for the Applicant; Allen & Overy LLP for the Respondent
The applicant, (CAAT) an association campaigning against international arms trade, applied for a Norwich Pharmacal order for disclosure against the respondent (BAE) in respect of the source of a leak of an internal email which contained privileged legal advice on tactics and costs in relation to proposed judicial review proceedings against the government concerning contracts between BAE and the government of Saudi Arabia. Upon receipt of the email BAE’s solicitors had immediately informed CAAT’s solicitors, and returned a copy of the email with the email header and other routing information redacted. BAE refused to disclose any details of the circumstances in which it received the email. CAAT argued that it could not safely initiate proceedings against the government without knowing the source of the leak, and that it had done everything practicable to investigate the source. BAE submitted that CAAT’s true motive was a collateral one.
Were the requirements for a Norwich Pharmacal order satisfied?
Granting the application: there may be circumstances where the mere receipt of a piece of information wrongfully sent will be sufficient involvement with a wrong-doing to trigger the court’s Norwich Pharmacal jurisdiction. The court will then consider whether it is necessary and proportionate to make the order sought, taking into account any counterbalancing public interest which militates against disclosure. The court is entitled to have regard to the size and resources of the applicant, the urgency of its need to obtain the information it requires and any public interest in it having its need satisfied. On the facts the requirement of wrongdoing was satisfied. BAE was involved as an innocent third party but was not a mere bystander or witness. It was a reasonable inference that BAE had read the email and thereby facilitated the wrong. It was irrelevant that BAE did not intend to use the information and there was no countervailing public interest supporting non-disclosure.
Although in this case the respondent was found to have actively, if innocently, facilitated the wrongdoing, the judgment provides useful support when seeking disclosure orders in circumstances where the third party has done no more than receive the information sought. It appears a ‘mere recipient’ is not to be viewed in the same light as a ‘mere witness’.