“…I agree with Mr Akkouh that the appropriate analogy is not with service out, but with applications for freezing orders, where the test for when the requirement of a "good arguable case" is satisfied is well-established. The test laid down by Mustill J (as he then was) in The Niedersachsen[1983] 2 Lloyd's Rep 600 at 605 (lhc) has been followed and applied many times since: "I consider that the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the Judge believes to have a better than 50 per cent chance of success."” "I consider that the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the Judge believes to have a better than 50 per cent chance of success."”
“24. In my judgment despite the argument of Mr Carr that there is no authority directly in point, it is clear that the exercise of the jurisdiction of the court under Norwich Pharmacal against third parties who are mere witnesses innocent of any participation in the wrongdoing being investigated is a remedy of last resort. (It is the Claimant's case that the Defendant is such an innocent third party.) The jurisdiction is only to be exercised if the innocent third parties are the only practicable source of information. The whole basis of the jurisdiction against them is that, unless and until they disclose what they know, there can be no litigation in which they can give evidence: see e.g. Lord Kilbrandon in Norwich Pharmacal at 203B and 205G. Whilst there is a public interest in achieving justice between disputing parties, there is also a public interest in not involving third parties if this can be avoided: see Sir John Donaldson MR in Harrington v. Polytechnic of North London[1984] 1 WLR 1293 at 1299 F-G. The jurisdiction is both exceptional and only to be exercised when it is necessary: Lord Woolf CJ in Ashworth Hospital Authority v. MGN Ltd[2002] 1 WLR 2033 at 2049. The necessity required to justify exercise of this intrusive jurisdiction is a necessity arising from the absence of any other practicable means of obtaining the essential information.”
“40. …the supposed pre-condition of necessity "does not require the remedy to be one of last resort, but the need to order disclosure will be found to exist only if it is a "necessary and proportionate response in all the circumstances"", per Zacaroli J in Blue Power Group SARL et al. v ENI Norge AS et al.[2018] EWHC 3588 (Ch) , at [17(ii)], derived from the Rugby Football Union case, supra, per Lord Kerr of Tonaghmore JSC at [16]. Thus, it is not correct to say that the jurisdiction is limited to cases of strict necessity. Rather, the question is whether, in the circumstances of a particular case, justice requires from the facilitator the particular cooperation demanded of him by the Claimant, with a view to righting facilitated wrongdoing. “42. I think there is room for the view that in truth there is: (i) but one strict pre-requisite (unless the cause of action issue creates a second, as to the nature of the wrongdoing that the Claimant must be alleging), namely that the Norwich Pharmacal Defendant must have been mixed up in so as to have facilitated that which the Norwich Pharmacal Claimant alleges to have been wrongdoing against him; and (ii) thereafter, a single question for the court, assessing and balancing all of the factors that bear upon it in any particular case, namely whether justice requires that the Defendant provide the assistance that the relief sought would compel him to provide, to further the end of righting a facilitated wrong.” (i) but one strict pre-requisite (unless the cause of action issue creates a second, as to the nature of the wrongdoing that the Claimant must be alleging), namely that the Norwich Pharmacal Defendant must have been mixed up in so as to have facilitated that which the Norwich Pharmacal Claimant alleges to have been wrongdoing against him; and (ii) thereafter, a single question for the court, assessing and balancing all of the factors that bear upon it in any particular case, namely whether justice requires that the Defendant provide the assistance that the relief sought would compel him to provide, to further the end of righting a facilitated wrong.”