A Norwich Pharmacal application (“NP Application”) can be a very useful tool in the armoury of a claimant – particularly in fraud cases – trying to establish sufficient information to be able pursue the ultimate wrongdoer. But what form should an NP Application take?
The Chancery Guide at §14.81 states that NP Applications “…should be made by Part 8 claim form unless made within existing proceedings when an application can be made under Part 23. An application under Part 23 is otherwise likely be rejected”.
If the respondent to the NP Application is already a defendant to existing proceedings, then clearly a Part 23 application is appropriate. But what if (1) there are existing proceedings and yet (2) the respondent to the NP Application is not a defendant to them? Is a Part 8 claim form required and if so, what are the consequences of instead making a Part 23 application?
These were some of the issues before Jacobs J in the recent case of Magomedov & Others v Kuzovkov & Others [2024] EWHC 2527 (Comm). At [112]-[122], the Judge held that, in such circumstances, a Part 8 claim form is not required and there was no procedural error in the applicants having made their NP Application under Part 23. In particular, relying on the provisions of the Chancery Guide as above, he held that:
- There was no difficulty in regarding a Part 23 application as a form of originating process (see further Gorbachev v Guriev [2022] EWCA Civ 120 at [31]-[36]);
- The Part 23 application was not the wrong form of originating process – although it was permissible to issue a new claim form, this would not be particularly helpful where there was an existing action and the procedures under Part 23 give parties a full opportunity to respond, including to set aside any order which has been made without prior notice;
- He did not read the judgment of Master Matthews in Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch) as dealing with this situation, rather that case concerned the situation where there was no existing action;
- There was no good reason why there should be a significant difference between the procedures, in the context of existing proceedings, for an application under CPR 31.17 (non-party disclosure) and an NP Application.
As explained in Chapter 12 of Disclosure of Information: Norwich Pharmacal and Related Principles (3rd ed, Simon Bushell and Gary Milner-Moore), there had been uncertainty as to what approach would be permissible and possible divergences between different court divisions.
This decision is therefore helpful clarification of an unresolved procedural point and confirmation that there is no difference between the practice in the Chancery Division and that in the Commercial Court.
A full copy of the judgment can be found here.
James Morgan KC was instructed by Simon Bushell and Kevin Kilgour of Seladore Legal for the applicants.
