In the case of The Right Honourable The Countess of Caledon v The Commissioner of Police for the Metropolis and another  EWHC 2214 (QB), the Applicant, the Rt Hon the Countess of Caledon, failed to satisfy both stages of the test to obtain a Norwich Pharmacal Order (‘NPO’) against the Commissioner of Police for the Metropolis (the ‘MPS’) for disclosure of information.
The Applicant sought extensive disclosure from the MPS which was held as a result of a criminal investigation into “an alleged healer/therapist”, Mrs Anne Craig, who had been counselling the Applicant’s daughter, ‘A’ and other young women. The Applicant and A were estranged and the Applicant blamed Mrs Craig in part for this. Mrs Craig had asserted that any allegations made against the Applicant and her family at any of her sessions emanated from A.
The Applicant relayed her concerns about Mrs Craig’s counselling to the police, and Mrs Craig was subsequently arrested on suspicion of fraud in October 2014. The criminal investigation was discontinued in April 2015. The Applicant sought the disclosure of various documents from the MPS on NPO principles with a view to then issuing proceedings against Mrs Craig as a result of her actions when counselling A.
The Norwich Pharmacal test
The basis for the Court granting a NPO is set out in Norwich Pharmacal Co v Customs & Exise Commissioners  AC 133:-
“…if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did.”
In most instances an NPO must be obtained otherwise the disclosure of information will amount to a prima facie breach of confidence/the Data Protection Act 1998 and/or a misuse of private information (and in some circumstances, negligence and breach of contract).
Two initial tests must be satisfied before an NPO can be granted. Firstly, the applicant must show that it has a cause of action against the alleged wrongdoer on the basis of which the disclosure is sought. In order to meet the second part of the test, the person or body from whom disclosure is sought must be considered more than a “mere witness” (as set out at paragraph 54 of Various Claimants v News Group Newspapers Ltd and another  EWHC 2119 (Ch). The Court will go on to consider necessity and proportionality. The granting of an order is always a matter for the Court’s discretion.
The Applicant contended that there were four possible causes of action against Mrs Craig. These were all rejected in turn by Mrs Justice Slade:
- Defamation – any possible defamation claim by the Applicant would be statute-barred.
- Harassment – the Applicant argued that Mrs Craig had told A a series of untruths with the intention to cause the Applicant distress. Mrs Craig denied that she had made the allegations and, in any event, the court held that there was no evidence that the actions of Mrs Craig were targeted at the Applicant (there was therefore no course of conduct) or were intended to cause her distress.
- Professional Malpractice causing Psychiatric Harm – Mrs Craig had not held herself out as someone with any professional qualifications as a therapist, nor did the Applicant provide any evidence that she had suffered psychological harm as a result of Mrs Craig’s activities.
- Intentional Infliction of Harm – no evidence was put forward that the Applicant had suffered psychiatric or psychological harm.
The Applicant therefore had not satisfied the first test in order to obtain an NPO. However, as submissions were made on the subject, the court also considered the second test.
In Various Claimants, disclosure had been sought against the MPS on the basis that the applicants knew that their telephones had been hacked and by whom, but did not have sufficient information to assess the strength of or plead a claim. In that case Mr Justice Mann went further and said that the Norwich Pharmacal principles should be applied flexibly to adapt to new and changing circumstances. The Applicant argued that similar principles applied to this case.
The court held that whilst an application for disclosure could fall within Norwich Pharmacal grounds if A wished to bring a claim against Mrs Craig herself, the court was unwilling to extend this to the Applicant, as the MPS were investigating any potential criminal conduct against A rather than against the Applicant. In the circumstances the court concluded that the second test under Norwich Pharmacal principles had not been satisfied either.
Slade J commented that even if there was a legal basis for a claim (which it found there was not in this case), it would be “most unlikely” that disclosure would provide material for a claim or for assessment of its prospects of success. In fact the Judge commented that even if the two elements of the test had been satisfied, she would not have granted disclosure in any event due to the public policy considerations in maintaining confidentiality in statements and material obtained through police investigations.
The case is a useful reminder to prospective NPO applicants of the importance of satisfying both limbs of the test before an NPO will be granted and that, even if both tests are satisfied, the court may still refuse the application unless any public policy considerations can be overcome. Even in those circumstances, the Court will need to consider whether an order is necessary and a proportionate interference with a third party’s privacy rights.
This post originally appeared on the Brett Wilson Media Law blog and is reproduced with permission and thanks.