The limits of Norwich Pharmacal orders: when a cellular operator is a witness, not a facilitator of wrongdoing
The Court of Appeal has ruled on an interesting point of law, to do with a UK mobile operator and Norwich Pharmacal orders.
What is a Norwich Pharmacal order
A Norwich Pharmacal order is a court order which is used to obtain information from a third party, to assist in litigation against someone else.
For example, to bring a claim of copyright infringement against an ISP's customer, the claimant rightsholder might attempt to secure a Norwich Pharmacal order against the customer's Internet access provider, to get the customer's name and address, to proceed against them.
In the case at hand, an insurance company felt that one of its customers might have committed fraud, and that a UK mobile operator might have data which would assist in bringing a claim against the customer.
The High Court refused the application for the order, holding that, according to settled principles for a Norwich Pharmacal order, the third party must be "mixed up in so as to have facilitated the wrongdoing" and a mobile operator was not mixed up. The judge said:
the provision of "mobile telephony" is not something that is exclusive to UK Vodaphone Limited [sic] or indeed to telephone providers generally. It is a joint effort between providers of telephone equipment and the people who provide the infrastructure for that equipment. The same argument as Mr Higgins uses could be applied to any ISP on the internet because using the internet it is quite possible to purport to be making a request for a delivery, for example, at one place where in fact you are at a different place. We are talking here about a means of communication and to suggest that somebody who provides the means of communication is so wrapped up in the matter as to have gone beyond the role of mere witness, in my judgment, is to strain language.
The applicant insurance company appealed, and the Court of Appeal rejected the appeal, holding that the judge at first instance had applied the law correctly.
The Court of Appeal held:
In my judgment, Mr Higgins' principal argument is misconceived. If the claimant is right in thinking that the policy holder has fraudulently asserted that his parents moved out of their home for a period to allow him and his family to occupy the house exclusively, it is arguable that his parents were involved in the wrongdoing. But I can see no basis on which it could be said that his mother's mobile phone service provider was more than a mere witness or, in Mann J's phrase, engaged with the wrong. The fact that the phone account holder would have been able to pretend she was somewhere she was not does not draw the phone company into her wrongdoing. It is true that the phone records may assist in establishing the truth of the parents' whereabouts. But in that regard the phone company is manifestly a mere witness. Its position is no different from anyone else who may be able to provide evidence about that issue – for example, the nephew living in Milton Keynes, or the neighbours to the parents' property, or, as Lewis LJ helpfully suggested in the course of the hearing, the milkman. The phone company's position seems to me to be analogous to that of a security company which installs CCTV cameras at a property. Such cameras are also a feature of modern life. The purpose of the cameras is to detect or deter burglars who have no right to be at the property, but they may also incidentally detect the presence of the householders who have every right to be there. The security company would therefore be a witness to any unlawful activity engaged in by the householders but it would not be drawn into that activity in any way.
The Court also noted with approval the High Court's consideration of Article 8 issues.
It will be interesting to see how this decision affects future applications for Norwich Pharmacal orders. It gives ISPs and communications providers a reasonable degree of scope for arguing that, while they might have information, they're not just a reference source, available on demand, and that they must be more closely connected with the underlying issue to justify the grant of an order.
I'll be keen to see how this operates if the provider's service is more closely connected with the issue (e.g. one of their broadband lines is used for the allegedly infringing download, rather than simply because the respondent was a customer).
The Court of Appeal expressly notes that this relates to a pre-action Norwich Pharmacal order, and that there is still scope for a claimant, having issued proceedings, to seek information from a communications provider under CPR 31.17.