“11. The three conditions to be satisfied for the court to exercise its power to grant Norwich Pharmacal relief were set out by Lightman J in Mitsui v Nexen Petroleum[2005] EWHC 625 (Ch) ;[2005] 3 All ER 511 at [21] (in a passage approved in the notes to Civil Procedure 2016 at 31.18.4 and, albeit without attribution, in Hollander: Documentary Evidence 12th edition at [4–01]): ‘The three conditions to be satisfied for the court to exercise the power to order Norwich Pharmacal relief are: i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.’” ‘The three conditions to be satisfied for the court to exercise the power to order Norwich Pharmacal relief are: i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.’”
“The second condition for relief is that the disclosure sought must be necessary in order to enable the applicant to bring legal proceedings or seek other legitimate redress for the wrongdoing and in considering the question of necessity, the cases emphasise the need for flexibility and discretion. This is clear from [57] of the speech of Lord Woolf CJ in Ashworth: “The Norwich Pharmacal jurisdiction is an exceptional one and one that is only exercised by the courts when they are satisfied it is necessary that it should be exercised. New situations are inevitably going to arise where it would be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which apply to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise as illustrated by the decision of Sir Richard Scott V-C in P v T Ltd[1997] 1 WLR 1309 where relief was granted because it was necessary in the interests of justice, albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action.”
“A somewhat different jurisdiction was considered and invoked by Robert Goff J. in A. v. C. (Note) [1981] Q.B. 956, where the plaintiff had obtained a Mareva injunction pursuant to an ex parte application, and the court was considering a continuation of that injunction. The injunction, which the court granted, was based on the plaintiff's contention, which the judge, at p. 957f, accepted was supported by “prima facie evidence that a fraud had been committed,” that he had been defrauded of substantial sums. The judge was considering an application which required a bank, which was, on the face of it, wholly innocent of any fraud, but through whose accounts the money may have passed, to disclose the sums presently standing in the names of the other defendants (who may well have been implicated in the fraud) and “all the facts within [the bank's] knowledge as to the present whereabouts” of the sum of which the plaintiff claimed to have been defrauded. Robert Goff J. held that he had jurisdiction to make such an order. He said, at p. 958e: “I take first the proprietary claim. In such cases, there is good authority that the court may make orders with the purpose of ascertaining the whereabouts of the missing trust fund.”
“a sweeping order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts.”
“a strong order, but the plaintiff's case that there is a trust fund of$3,500,000 . This has disappeared, and the gentlemen against whom orders are sought may be able to give information as to where it is and who is in charge of it. The court of equity has never hesitated to use its strongest powers to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain. That is why orders of this sort were made long before the recent orders for discovery, and they are at the heart of the Chancery Division's concern, and it is the concern of any court of equity, to see that the stable door is locked before the horse has gone.”
“in an action in which the plaintiff seeks to trace property which in equity belongs to him, the court not only has jurisdiction to grant an injunction restraining the disposal of that property; it may, in addition … make orders to ascertain the whereabouts of that property.”
“In order to enable justice to be done—in order to enable these funds to be traced—it is a very important part of the court's armoury to be able to order discovery. The powers in this regard, and the extent to which they have gone, were exemplified in Norwich Pharmacal …”
“This new jurisdiction must, of course, be carefully exercised. It is a strong thing to order a bank to disclose the state of its customer's account and the documents and correspondence relating to it. It should only be done when there is a good ground for thinking the money in the bank is the plaintiff's money—as, for instance, when the customer has got the money by fraud—or other wrong-doing—and paid it into his account at the bank.” “a strong order, but the plaintiff's case that there is a trust fund of$3,500,000 . This has disappeared, and the gentlemen against whom orders are sought may be able to give information as to where it is and who is in charge of it. The court of equity has never hesitated to use its strongest powers to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain. That is why orders of this sort were made long before the recent orders for discovery, and they are at the heart of the Chancery Division's concern, and it is the concern of any court of equity, to see that the stable door is locked before the horse has gone.” “in an action in which the plaintiff seeks to trace property which in equity belongs to him, the court not only has jurisdiction to grant an injunction restraining the disposal of that property; it may, in addition … make orders to ascertain the whereabouts of that property.” “In order to enable justice to be done—in order to enable these funds to be traced—it is a very important part of the court's armoury to be able to order discovery. The powers in this regard, and the extent to which they have gone, were exemplified in Norwich Pharmacal …” “This new jurisdiction must, of course, be carefully exercised. It is a strong thing to order a bank to disclose the state of its customer's account and the documents and correspondence relating to it. It should only be done when there is a good ground for thinking the money in the bank is the plaintiff's money—as, for instance, when the customer has got the money by fraud—or other wrong-doing—and paid it into his account at the bank.”
“2 Transfer of the IBA Assets [The claimant] shall transfer to [SMP] all the IBA Assets … subject only to SMP providing confirmation that is registered with the GISC. [SMP] shall hold all IBA Assets and discharge the IBA Liabilities in a proper manner, consistent with the status of a Lloyds broker in accordance with the GISC rules. SMP shall not transfer any of the IBA Assets except to a creditor with an IBA liability, save as permitted under the GISC Rules and shall not appoint an agent or sub-trustee of them without the prior written consent of [the claimant]. The IBA Assets are held and shall continue to be held in a separate account or accounts to any non-IBA monies.”
“The amount of debts owing to [the claimant] in respect of all insurance broking transactions of [the claimant] and the amount credited to all bank accounts of [the claimant] designated IBA in accordance with the requirements of GISC.” “IBA Liabilities” are defined as: “The liabilities of [the claimant] in respect of all insurance broker transactions of [the claimant] and the amount debited to all bank accounts of the claimant designated IBA in accordance with the requirements of GISC. The term IBA Liabilities shall also include any Liabilities arising in relation to insurance business placed by [the claimant] prior to the Transfer Date [9 May 2003 ] of the nature of the IBA Liabilities which have not been incurred or reported at the Transfer Date.” (“IBA” is defined as “Insurance Broking Assets”.) [The claimant] shall transfer to [SMP] all the IBA Assets … subject only to SMP providing confirmation that is registered with the GISC. [SMP] shall hold all IBA Assets and discharge the IBA Liabilities in a proper manner, consistent with the status of a Lloyds broker in accordance with the GISC rules. SMP shall not transfer any of the IBA Assets except to a creditor with an IBA liability, save as permitted under the GISC Rules and shall not appoint an agent or sub-trustee of them without the prior written consent of [the claimant]. The IBA Assets are held and shall continue to be held in a separate account or accounts to any non-IBA monies.” “The liabilities of [the claimant] in respect of all insurance broker transactions of [the claimant] and the amount debited to all bank accounts of the claimant designated IBA in accordance with the requirements of GISC. The term IBA Liabilities shall also include any Liabilities arising in relation to insurance business placed by [the claimant] prior to the Transfer Date [9 May 2003 ] of the nature of the IBA Liabilities which have not been incurred or reported at the Transfer Date.”