Norwich Pharmacal Orders in the Irish Courts and their use in aid of foreign proceedings

What is Norwich Pharmacal Relief?

Norwich Pharmacal Relief is a court ordered relief, compelling an individual or a company to disclose information or documentation. The main reason for seeking this relief is usually to identify an appropriate defendant for prospective legal proceedings.

It is an equitable remedy deriving from the inherent jurisdiction of the High Court in Ireland. An order will be made only where it is deemed necessary and is required by the interests of justice.

The Irish Approach

The leading Irish case on Norwich Pharmacal Orders (“NPOs”) is Blythe v Commissioner of An Garda Síochána[1] , where the Court of Appeal laid down the following principles:

Applicant must demonstrate wrongdoing – the applicant must demonstrate that it has a “strong case” against the alleged wrongdoer that is “likely to succeed at trial”.

Possession/necessity – the information sought must likely be in the possession of the respondent, be necessary for the purposes of bringing court proceedings, and there must not be another way of obtaining the information.

Proportionality – the Court must weigh the interests favouring disclosure (for example, the applicants right to an effective remedy) against those interests not in favour of disclosure (for example, privacy).

Duty of candour/Good faith – since the party most likely to be affected by the order is not a party to the application (i.e. the alleged wrongdoer), the applicant must present their application with good faith and open disclosure.

Implied Undertaking – the applicant is subject to an implied undertaking to limit the use of the information sought (for example, limited to the prosecution of proceedings against the alleged wrongdoer).

Costs – where the respondent is not themselves a wrongdoer, they should be entitled to their costs from the applicant. This extends to a case where the respondent bona fide unsuccessfully defends the application.

A relatively common use of the NPO procedure in Ireland it to seek a Court order requiring social media companies in particular to provide information that may allow the applying party to identify the publisher of a defamatory post. As recently as last month there were media reports of an NPO application against the owners  of the popular RIP.ie website seeking information as to the identify of individuals who posted allegedly defamatory comments[2].

The jurisdiction for that kind of NPO is likely to be put on a statutory footing with the Defamation (Amendment) Bill 2024, which had lapsed due to the dissolution of the Dáil in November 2024. However following the publication of the Programme for Government in January 2025, the Government committed to restoring and passing the legislation.

While the Irish approach to NPOs is more restrictive than other jurisdictions such as England & Wales, the British Virgin Islands and the Cayman Islands, the Courts have demonstrated a willingness to extend their reach. For example, in ESB & Anor v Richmond Homes & Anor[3], the High Court granted an NPO not only requiring the disclosure of the identity of the alleged wrongdoers, but also of dates and amounts of allegedly improper payments requested by and paid to those wrongdoers.

Use of NPOs to aid Foreign Proceedings

Irish position

The question of whether NPO relief can be sought in Ireland for the purpose of aiding proceedings in a foreign jurisdiction is yet to be clarified in this jurisdiction. While like in many areas, the Irish Courts have traditionally followed decisions of the Courts of England & Wales, those Courts have not yet answered this question in a way that can be readily adopted in this jurisdiction.

Position in England & Wales

In 2016, the English High Court held in Ramilos Trading Limited v Valentin Mikhaylovich Buyanovsky[4]that an NPO could not be made to obtain information or evidence to be used in foreign proceedings. This was because, in England, the jurisdiction to order persons to provide information or evidence in aid of foreign court proceedings is covered by statute, namely the Evidence (Proceedings in Other Jurisdictions) Act 1975. The English High Court held that Parliament could not have intended that a common law remedy such as an NPO and the statutory scheme in the 1975 Act should co-exist.

In a relatively recent 2023 case, Green v CT Group Holdings Ltd[5], the High Court in England held that an NPO will only be granted where it is satisfied that, in addition to complying with the widely recognised criteria  (similar to those noted at 1-6 above from the Blythe case), the application is made for a “proper purpose”. In that case, the Applicant sought disclosure of the source of certain documents, in relation to ongoing proceedings in Jersey and Guernsey to which she was a party. The Applicant argued that the Respondent was able to identify wrongdoers who had allegedly fabricated evidence intending to cause her prejudice in the Channel Islands proceedings.

The Judge in Green felt the test did not take account of a line of case law[6] that essentially found that NPO relief was not available to obtain evidence for use in foreign proceedings, due to existing exclusive statutory schemes for such situations (known as a “letter of request” procedure[7]).

The English Courts have therefore taken an approach that NPO relief is not available where an alternative solution is available. The potential drawback for practitioners here is that the statutory process is a lengthy one and puts the other side on notice from an early stage.

 Other jurisdictions more amenable to NPO relief to aid foreign proceedings

The recent worldwide litigation between ArcelorMittal USA LLC v. Essar Steel Ltd[8]has shown a divergence in the way the English and Cayman Islands courts have dealt with this issue. ArcelorMittal secured a very substantial arbitration award against Essar Steel, which it enforced in various jurisdictions including England. As part of the enforcement process, ArcelorMittal applied for NPO relief from the English High Court and from the Grand Court of the Cayman Islands. It was argued before both courts that no order could be made because the information was being sought for use in foreign proceedings.

In the English proceedings, the court said that in principle “the court can make orders for the provision of information in aid of enforcement of a judgment in circumstances where there is evidence that a judgment debtor has taken steps to dissipate his assets or attempted to make himself judgment-proof”. The court was however of the view that NPO relief was not available where the "sole purpose was to facilitate enforcement proceedings abroad"[9].

A different approach on this point was taken by the Grand Court of the Cayman Island, the decision of which was confirmed by the Cayman Court of Appeal which addressed the point on NPO jurisdiction. The court did have power to make the order because it was in support of, and to make effective, the worldwide freezing order that had also been granted by the English court. The court held the mere fact information was sought for use in foreign proceedings did not automatically render NPO relief unavailable. Rather, the key question was "whether or not on the facts of a particular case the need for equitable relief [was] displaced by the availability of the statutory regime". On the facts, the Cayman statutory regime to assist foreign proceedings was not available in practical terms, particularly "having regard to the risk of information being destroyed”[10]. The Cayman Court appeared to have cognisance of instances where the use of statutory schemes would result in an opportunity being afforded to ultimate potential defendants to destroy evidence. As such, this reasoning may be applicable to cases involving allegations of fraud.

The position in the British Virgin Islands is that NPO relief can be granted where proceedings may be, will be or already have been issued in a foreign jurisdiction and notwithstanding that the power to make such an order is available under an alternative statutory scheme[11].

Alternative Avenues in Ireland to aid foreign proceedings

It is possible to make an application to court requiring a witness in Ireland to give evidence in foreign proceedings. There are two procedures, depending on the country in which those foreign proceedings are based. These two procedures focus on evidence from witnesses rather than seeking documents alone, however it is understood that documents referred to in evidence by the witness in question would be covered by the procedures.

One key difference between these alternatives and NPO relief is that the alternatives are available in instances where proceedings have already been issued, rather than for prospective proceedings.

Outside the EU – Foreign Tribunals Evidence Act 1856

Under the Foreign Tribunals Evidence Act of 1856, an Irish Court may, on the application of a foreign court or tribunal, direct that a witness in Ireland give evidence for use in foreign proceedings. Certain conditions must be satisfied, namely:

Proceedings must be ongoing before a request for evidence can be made.

A letter of request, called “letters rogatory”, must be issued from the foreign court to the Irish court requesting assistance by directing the Irish witness to attend before it to give evidence.

An ex-parte application (one side only) is made to the Irish court which is grounded on affidavit. This should set out the full circumstances in which the evidence is sought and exhibit letters of request / letters rogatory. It should also make proposals as to the directions required from the High Court to effect suitable arrangements for the deposition hearing.

If the court is satisfied that the various requirements are met, the court will make an Order allowing the depositions to proceed and give directions as appropriate.

The Order has a provisional status. The moving party carries the burden of making the application afresh in the event that the addressees of the order seek to have it set aside.

The examination is overseen by an examiner appointed by the Irish court and is subject to Irish evidential rules[12].

In Cutler v Azur Pharma International[13], the High Court set down proofs to establish before an order would be granted:

the evidence proposed to be taken is relevant to the foreign proceedings;

the application is not oppressive;

the grant of the request would not override any established privilege or protection available to the prospective witness; and

the evidence is itself admissible under the law of the requesting state.

In Cutler the Court granted an order under the Foreign Tribunals Evidence Act, but varied the order so as not to make the order oppressive. The variation featured a rejection of a request for documents from KPMG in Ireland, in circumstances where the documents sought were in the foreign jurisdiction and the subject of a discovery request in proceedings in that jurisdiction. In that sense the Court will seek to avoid duplication.

The Irish Courts have provided further guidance on the information that can be sought pursuant to the 1856 Act. For example, the Court will set aside an order under the Act where it amounts to a discovery request[14]. In other words, the Act cannot be used solely to seek discovery of documents, and the Irish Courts will not grant an order on such terms that goes beyond evidence given by a witness.

Within the EU - Council Regulation (EC) No 1206/2001 repealed and replaced by Regulation (EU) 2020/1783 as of 1 July 2022. – The Evidence Regulation

The Evidence Regulation enables a litigant to current or contemplated proceedings to apply to take evidence from a witness in Ireland. If they are successful in their application under the Evidence Regulation, a subpoena is granted. It is not clear whether an application under the Evidence Regulation would require the provision of documents referred to in oral evidence referred to by the witness.

Conclusion

There are different approaches taken by the respective courts in the British Virgin Islands, Cayman Islands, England & Wales and Ireland to NPO applications. When formulating recovery strategies, practitioners should be cognisant of the nuances applicable in the various courts which they might use. Practitioners in Ireland should have an awareness of alternative avenues for obtaining information. It will be interesting to see the approach of the Irish Courts to an NPO application for documents to assist in the prosecution/institution of foreign proceedings. Given the significant reach of the Irish financial services sector, it seems likely that such an application will be considered by the Irish Courts sooner rather than later.  

[1] [2023] IECA 255.

[2] https://www.thetimes.com/world/ireland-world/article/man-issues-legal-action-against-ripie-over-claim-he-was-defamed-6d993knxv

[3] [2023] IEHC 571.

[4] [2016] EWHC 3175 (Comm), 2016 WL 07156922

[5] [2023] EWHC 3168 (Comm).

[6] R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118.

[7] Provided for in the Evidence (Proceedings in Other Jurisdictions) Act 1975

[8] ICC Case No. 22187/RD/MK

[9] Arcelormittal USA LLC v Essar Steel Ltd [2019] EWHC 724 (Comm), para 159.

[10] Essar Global Fund and Essar Capital Ltd v ArcelorMittal USA - Court of Appeal of the Cayman Islands Civil 15 of 2019 - Judgment - 3 May 2021

[11] Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act 2020 s. 3(5)

[12] The Foreign Tribunals Evidence Act of 1856

[13][2015] 1 I.R. 167

[14] Sabretech v Shannon Aerospace Limited [1999] 2 IR 468