A Norwich Pharmacal Order is an order granted to a third party who finds themselves mixed up in wrongdoing and is required to disclose documents or information necessary to put the record straight. As such, the orders apply where an innocent third party has information relating to unlawful conduct. Typically, in such circumstances, the Court is enjoined to compel such third party to assist the person suffering damage.
Thus, the Kenyan Courts have wide jurisdiction to issue orders compelling an innocent third party who has been caught up in wrongdoing, which is the subject of a claim, to provide disclosure of relevant information.
Discovery Against a Third Party
Simply put, a Norwich Pharmacal Order enables a party to seek discovery against a third party who is not a party to the suit.
Pursuant to Section 22 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, the Court has broad powers to order discovery at any time, either on its own motion or on the application of any party.
Ordinarily, as between parties to a suit, the Court expects full disclosure of relevant material and documents to avoid surprise at trial. For avoidance of doubt, Section 22 of the Civil Procedure Act and the Civil Procedure Rules do not, in principle, constrain the Court's power to order discovery against a third party where the circumstances permit.
Conditions for Granting Norwich Pharmacal Order
In Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), the Court outlined three conditions that must be satisfied:
1. Wrongdoing
A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer.
2. Need for Disclosure
There must be a need for the order to enable action to be brought against the ultimate wrongdoer.
3. The Third Party Must Be Mixed Up in the Wrongdoing
The person against whom the order is sought must be mixed up in the wrongdoing so as to have facilitated it and must be able, or likely to be able, to provide the information necessary to enable the ultimate wrongdoer to be sued.
The Kenyan Position
At Musa & Musa Advocates, we hold that the Court has wide latitude to order discovery against a third party, provided that the material sought is relevant to the dispute.
Have You Been Wronged but Cannot Identify the Wrongdoer?
If you have suffered loss or damage but the identity of the person responsible is unknown, and the information needed to identify or pursue them is held by a third party, a Norwich Pharmacal Order may provide a legal avenue for obtaining that information.
Do not panic! Whether you are dealing with:
- Anonymous online wrongdoing
- Fraud
- Disputed transactions
- Other circumstances where a third party holds information necessary to pursue a wrongdoer
At Musa & Musa Advocates we assess your circumstances and advise on the appropriate legal remedy. Contact us today for personalized advice.
Discuss your matter