UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
Norwich Pharmacal Orders Where the CPR disclosure route does not assist, a Norwich Pharmacal order (so called because of the case from which it derives) enables a wronged party to obtain disclosure from a third party who is involved in wrongdoing (innocently or not) but who is unlikely to be a party to any subsequent proceedings. Norwich Pharmacal orders are flexible and have been developed to respond to a range of cir - cumstances. In fraud cases, they are commonly sought against banks, and are used to: • identify the proper defendant to a claim; • trace assets; • assist in pleading a case; and/or • enforce a judgment. They are often sought “without notice” and are accompanied by “gagging order” preventing the third party from informing anyone, including its customer(s), that the order has been obtained. Bankers Trust Orders Bankers Trust orders (again, so called because of the case from which they derive) are typically made against banks or other institutions that hold misappropriated funds or through which misap - propriated funds have passed. They require the bank or institution to disclose information relat - ing to customer accounts and can accordingly be very useful in tracing funds. They operate in a similar manner to Norwich Pharmacal orders, but are generally easier to obtain. Restricted Use Where an order allows for material to be obtained from a third party, that material can normally only be used in respect of the specific proceedings in which the order was made – it cannot be used
damages” , which means they must compensate the defendant for any loss unduly suffered as a consequence of the search and seizure order. They must also undertake to commence a claim shortly after any such order is made. Note that a search and seizure order does not allow a claimant to force their way into the defendant’s premises. Rather, if the defendant refuses entry, the claimant’s remedy is through contempt of court proceedings. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties There are three main ways in which a wronged party may seek to obtain information from third parties. Third-Party Disclosure Pursuant to the Civil Pro - cedure Rules (CPR) Rule 31.17 of the CPR allows for disclosure from a non-party when the disclosure sought is: • likely to support the claimant’s case or adversely affect the case of the other party/ parties; and • necessary for dealing with the claim fairly and/or for saving costs. In considering whether to grant such an order, the court will consider the burden imposed on the third party by having to provide disclosure. Importantly, Rule 31.17 only applies where pro - ceedings have been commenced. It is possible to obtain disclosure before proceedings have begun under Rule 31.16, but such an order can only be sought against someone who is likely to become a party to any subsequent proceedings (which will be difficult where the third party has not committed any wrong).
376 CHAMBERS.COM
Powered by FlippingBook