Duhaime's Law Dictionary


Norwich Order Definition:

Pre-action third party discovery to an intended plaintiff without notice to the intended defendant.

Also known as a Norwich application or a Norwich Phamacal application, by which one seeks a Norwich order.

Named after the House of Lords 1974 law case in which it was developed and followed, and which was cleverly summarized by Justice Kent of the Alberta Court of Queen’s Bench in Interclaim Holdings:

"Norwich Pharmacal believed that someone was importing drugs for which Norwich had the patent. It wanted to bring legal proceedings against the importers but did not know their identity. The Customs office did know the identity but refused to provide that information. The House of Lords acknowledged that the right of discovery is founded in equity. The Law Lords held that although there was no broad independent right of discovery against a person who had committed no wrong or was a mere witness, there could be discovery against a person who had committed no wrong or was a mere witness, there could be discovery against a person from whom discovery was sought had been innocently involved in the wrongdoing. They said that since discovery itself is an equitable remedy, this limited type of discovery remained notwithstanding the clarification of civil practice by the introduction of rules of practice."

In Norwich Phamacal, Justice Reid of the House of Lords wrote:

"[I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he 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. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."

In GEA Group, Madam Justice Eleanore Cronk of the Court of Appeal for Ontario adopted these words:

"Norwich Pharmacal holds that, in certain circumstances, an action for discovery may be allowed against an involved third party who has information that the claimant alleges would allow it to identify a wrongdoer, so as to enable the claimant to bring an action against the wrongdoer where the claimant would otherwise not be able to do so.

"In ... Norwich Pharmacal (the Court) rejected the suggestion that the recognition of an action for discovery to permit disclosure of the names and addresses of alleged wrongdoers would open the door to meritless fishing requests by prospective plaintiffs who sought to collect evidence or information from persons who had no relevant connection with the person to be sued or the events at issue. In so doing, (it) also identified the following factors as relevant to the determination of whether pre-action discovery of a third party should be allowed in the exercise of the court’s discretion: (i) the strength of the applicant’s case against the unknown alleged wrongdoer; (ii) the relationship between the alleged wrongdoer and the respondent (the person from whom discovery is sought); (iii) whether the information could be obtained from another source; and (iv) whether the provision of the information would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant....

"In Norwich Pharmacal, pre-action discovery was sought for a narrow purpose – to identify suspected wrongdoers where it was known that a wrong had occurred, in order to permit the injured parties to sue for redress. To achieve this focused objective, discovery was allowed against an innocent third party against whom the appellants had no direct cause of action. However, following Norwich Pharmacal, the reach of the equitable action for discovery in England was significantly expanded. In subsequent cases, pre-action discovery was granted where a cause of action against the respondent from whom discovery was sought was asserted on the basis of the respondent’s own alleged wrongdoing, as well as where the object of the relief was to permit the tracing and freezing of assets . In addition, ... Norwich relief was granted to permit an applicant to determine if, in fact, he had a cause of action against a suspected wrongdoer. Moreover, ... Norwich jurisdiction was not linked to any requirement that the information should be available to the individual who had been wronged only for the purpose of enabling him to vindicate that wrong by bringing proceedings. In other words, ... a Norwich order could be obtained in the absence of a settled intention to sue the alleged wrongdoer or the person from whom discovery is sought....

"New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy."

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