What is Norwich Pharmacal Order?
Norwich Pharmacal Order (Third Party Disclosure Order) is a common law legal remedy that is commonly used in the recovery of fraudulent funds, trademark patent infringement or other tort cases.
Taking the recovery of defrauded funds as an example, in various e-mail fraud, financial fraud, investment scam and other cases that often occur in Hong Kong, the victim was defrauded and paid the money to the bank account designated by the scammer, and then found that he was deceived. The liar had already disappeared
When a victim wanted to pursue it. The only traceable information is the bank account that used to accept the victim's remittance. To recover the losses, under the common law, the victim (remitter) can file a lawsuit against the holder of the bank account under the causes of action of proprietary interest or unjust enrichment or trust of the funds in the receiving account. Wait for the cause of action to file Then, who is the
holder of the receiving account? If the account holder is sued, where is the address (for the purpose of service)? Was the remitted sum of the victim transferred? What account was the sum transferred to (the second-tier account)? How much money was transferred to the second-tier account? Who is the holder of the second-tier account and where is the address (after obtaining this information, the holder of the second-tier account can be sued in the same way)?
In Hong Kong, the banks have a legal obligation to keep a client’s account
information confidential. Without a court order, the bank will not provide the victim with the account information as evidence for a litigation. So, what should a victim do? The solution is to apply to the court for a Norwich Pharmacal Order (third-party disclosure order) with the bank as the respondent, requiring the bank to provide the information of a bank account (first-tier account) that directly receives the victim's
remittance and the other accounts indirectly receives the victim’s fund (second, third… tier accounts) so that the victim can file a lawsuit against the holders of these accounts.
If explained in a more formal language, the Norwich Pharmacal Order (third party disclosure order) is an order for innocent third parties to disclose information and information related to the wrongdoings. Although the third party itself is not the perpetrator, the court has the right to request the third party to provide information and information related to the wrongdoing because it is involved in the offending act
in order to do justice.
The discretion of the court to approve the Norwich Pharmacal Order
The common law is based on the principles or rationales of judicial precedent or case law. In common law, generally speaking, a person does not have the right to request a third person who is not the perpetrator of the offending act to provide him with assistance. Therefore, the Norwich Pharmacal Order (third-party disclosure order) is not a legal entitlement as of right but an equitable relief. Whether the court approves depends on the court discretion.
When the court exercises its discretion, it needs to consider factors such as
existence, relevance, and necessity:-
- “existence” means whether the third party does hold documents and information related to the wrongdoings;
- “relevance” means the documents and information held by the third party are indeed related to the wrongdoings;
- “necessity” means the disclosure of such documents and information by the third party is indeed necessary for the victim to pursue his case. In particular, the court needs to make a decision in balancing the conflict of interest between the victim’s request for justice and the third party’s confidentiality obligation.
How to apply for Norwich Pharmacal Order ?
The way to apply for a Norwich Pharmacal Order is to apply to the Hong Kong High Court (depends on the amount of the claim) by way of an Originating Summons together with an Affidavit in support.
The applicant needs to pay the respondent’s attorney’s fees and
indemnify for the relevant losses As the respondent is not the offender but an innocent party, who was joined in the proceedings by the applicant (victim), the applicant should therefore pay the respondent’s costs on an indemnity basis. In other words, the applicant must pay all the legal fees of the respondent unless otherwise agreed.
In addition, based on the same reason, the applicant needs to undertake that if this application causes any losses to the respondent, the applicant needs to compensate the respondent. However, there is generally no need to provide a guarantee or a guarantor for the assets of the applicant.
Norwich Pharmacal Order in Hong Kong to support litigation abroad (such as Mainland China)
For lawyers engaged in cross-border litigation, a very relevant information is: You can apply for a Norwich Pharmacal Order (third party disclosure) in Hong Kong in order to support litigation abroad (such as Mainland China). In other words, even if the litigation will not be pursued in Hong Kong but in other countries (for example, in the Mainland China), if a third party in Hong Kong (such as a bank) holds information or data related to the perpetrator or the act of wrongdoings, you can apply for a Norwich
Pharmacal Order (Third Party Disclosure Order) in Hong Kong to obtain relevant information to support the litigation in the Mainland China or overseas.
For any enquiries on a Norwich Pharmacal Order (third-party disclosure order) or other cross-border litigation issues, please do not hesitate to contact us for a consultation by our email address [email protected].