Introduction

By means of a Norwich Pharmacal order, the English courts have the power to order parties mixed up in wrongdoing to disclose key information to the victim of that wrongdoing to assist the victim in pursuing the wrongdoers. For example, a victim of anonymous online defamation might seek the defamer's identity from an internet service provider in order to sue the defamer.

In a recent application for a Norwich Pharmacal order in Hickox v Dickinson ([2020] EWHC 2520 (Ch)), the owner of a stolen painting sought information from the defendants (fine art agents) as to the painting's whereabouts and the identity of its possessor and purchaser. The defendants resisted on two main grounds:

  • the fact that the nature and existence of tort (by the ultimate purchaser) had not yet been established; and
  • the art-world custom which prevented disclosure of the names of private buyers of art works.

In granting the Norwich Pharmacal order, the court found a good arguable claim for conversion against the ultimate purchaser. The court held that it was sufficient to establish a good arguable case for essential elements of the cause of action, even if there were significant questions over important case aspects, such as limitation.

Facts

The claimant (Ms Hickox) contended that a painting had been stolen from her by a third party (Timothy Sammons, a former art dealer) and sold without any authority. Sammons was subsequently convicted in the United States for theft offences arising from several artwork sales that he had brokered, including the painting in question. However, Hickox received neither the painting nor any sale proceeds.

The defendants were an art dealership (which acted as the agent for the purchaser of the painting) and its director.

Hickox applied for a Norwich Pharmacal order against the defendants, seeking information as to the painting's location and any transactions involving it, including the identity of any purchasers.

Hickox did not articulate the precise nature and existence of any tort (by the ultimate purchaser) in her application. The information was requested on the basis that it would enable Hickox to establish the basis of the transactions and determine the potential defendants.

Conditions for grant of Norwich Pharmacal orders

The conditions for the grant of Norwich Pharmacal orders, which Hickox had to meet, are as follows:

(i) The applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person (the Arguable Wrong Condition); (ii) The respondent to the application must be mixed up in so as to have facilitated the wrongdoing (the Mixed Up In Condition); (iii) The respondent to the application must be able, or likely to be able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued (the Possession Condition); and (iv) Requiring disclosure from the respondent is an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction (the Overall Justice Condition).(1)

In addition, in relation to establishing the arguable wrong condition, showing a good arguable case requires more than "an honest and reasonable belief that there has been any wrongdoing". However, in exercising its discretion to grant Norwich Pharmacal orders, the court must be vigilant in guarding against fishing exercises in what is regarded as an exceptional jurisdiction.

What wrongdoing was alleged?

Hickox did not articulate the precise nature and existence of any wrongdoing by the ultimate purchaser. However, she submitted that there would be a good arguable case regarding the following potential causes of action:

  • conversion (ie, dealing with the painting in a way that is inconsistent with the owner's rights);
  • bailment (ie, failing to return property held without ownership rights); and
  • equitable relief for a breach of a fiduciary duty or misappropriation.

The defendants argued that the Norwich Pharmacal order was speculative and should not be granted on this account.

In deciding the application, the judge noted that:

  • the warnings in previous cases against speculative applications giving rise to Norwich Pharmacal orders did not suggest that an application was impermissible in order to establish whether a wrong had been committed. The judge observed that in "all Norwich Pharmacal applications the claimant's case is partly inchoate, that is the very point of the relief";
  • the test that an applicant "must show that it has a good arguable case that there has been wrongdoing" goes both to the existence of any wrong as well as its potential merits; and
  • there must be a good arguable case in respect of each essential element of the cause of action.

Application of good arguable case threshold

As regards conversion, the judge noted that this was a strict liability tort, which did not require knowledge or notice on the wrongdoer's part. In concluding that Hickox had a good arguable case that the painting had been converted, the judge found as follows:

  • There was a good arguable case that Hickox had not authorised Sammons to sell the painting and that he had converted the painting. This was supported by his convictions and correspondence with Hickox.
  • There was a good arguable case of conversion by any person who had taken possession of the painting in relation to the sale or subsequently. This was not speculative. Although the purchaser's identity remained unknown, there was little doubt that Sammons had acted dishonestly, that someone had purchased the painting and that someone had taken possession of it following that sale.
  • There was strong evidence of a theft that would make subsequent purchasers taking possession liable in conversion unless they could invoke an exception to nemo dat (the principle that no one can transfer better title to goods than they themselves possess). The defendants raised no such exception that could be raised by a subsequent purchaser.
  • The defendants had raised a time bar as the relevant events had taken place more than six years ago. Hickox had sought to rely on the extended time limit under the Limitation Act for cases of conversions relating to theft of chattel. The judge held that this question was more appropriate for trial. In any event, the fact that there was a significant issue around limitation (as opposed to a clear-cut defence) did not detract from the good arguable case which had been established.

As regards the remaining conditions to grant a Norwich Pharmacal order, the judge:

  • found that the order was necessary to enable action to be taken against the wrongdoers as the defendants had expressly accepted that the additional information requested could likely come only from them (ie, the possession condition was satisfied); deemed that it was in the overall interests of justice to make the order notwithstanding the art-world custom of non-disclosure of private buyers;
  • observed that the general custom had been treated by the defendants more fluidly in practice than they had asserted. Further, the interests of protecting the purchaser's privacy in avoiding publicity as to the extent of their wealth and preserving confidentiality as to the painting's location was outweighed by Hickox's interest in pursuing a good arguable claim for conversion; and
  • granted the Norwich Pharmacal order against the second defendant (the art dealership), which had been involved in the sale. However, the judge declined to make an order against the first defendant, Dickinson (the director), on the basis that Hickox had not satisfied the court that he had been personally mixed up in the wrongdoing (ie, the mixed up in condition was not satisfied).

Other potential claims

For completeness, the judge found that no Norwich Pharmacal order could be granted based on the potential bailment claim or the potential claims for breach of fiduciary duty. This was because essential elements of these causes of action (relating to the purchaser's knowledge or notice) could not be satisfied to the good arguable case standard.

Hickox also sought disclosure pursuant to a Bankers Trust order. This relief arises from the eponymous case of Bankers Trust v Shapira ([1980] 1 WLR 1274 (CA)), which held that in order to give effect to the equitable right to trace, a court could order a bank to disclose the state of, and documents and correspondence relating to, the account of a customer who was, on the face of it, guilty of fraud. However, the judge found that Hickox's case on misappropriation was not so strong as to justify disclosure solely on this basis.

Comment

Norwich Pharmacal orders can be useful tools in the armoury of a victim of fraud or other wrongdoing. This case provides helpful guidance for Norwich Pharmacal orders in cases where the wrongdoer's identity or other details required to establish the wrongdoing are unknown. However, it is also a reminder that the courts are mindful not to permit Norwich Pharmacal orders to be used as fishing expeditions. All essential elements of the putative cause of action must be established to the good arguable case threshold.

Court records indicate that Hickox has since issued a claim against eight defendants (including the defendants to this application). It remains to be seen whether she will succeed in recovering her stolen painting or the proceeds from its sale.

Endnotes

(1) As propounded in Collier v Bennett [2020] EWHC 1884 (QB).