Getting Disclosure of Identity of Potential Defend
Quite obviously to bring a claim against another party, the identity of that other party is usually required. Sometimes the identity of that other party (“the Intended Defendant”) is unknown but information or documentation as to the identity of the Intended Defendant is in the hands of a third party (“the Respondent”). In certain circumstances it is possible to get an order against the Respondent to disclose the details of the Intended Defendant’s actual identity so you can progress your case even though the Respondent may be just innocently caught up in the wrong-doing by the Intended Defendant.
A good example of circumstances when such an order (known as a “NPO” after the leading case of Norwich Pharmacal Co –v- Commissioners of Customs and Excise) could be obtained arose in the case of the Rugby Football Union (“RFU”) –v- Consolidation Information Systems Limited in liquidation (“CISL”). Here the RFU obtained an NPO against CISL, who were the operators of a ticket website, to disclose the identities of individuals who had used the website to sell and purchase tickets to rugby matches at Twickenham at inflated prices in breach of terms and conditions upon which the RFU tickets were available.
Requirements to be met
Obviously the obtaining of an NPO is a potentially very intrusive order and hence you must show the following:-
- The provision of the information/documentation is a necessary and proportionate response in all the circumstances. The circumstances to be considered include:-
- The strength of the claim against the Intended Defendant.
- Whether making an order will deter similar wrong-doing in the future.
- Whether information could be obtained from another source, eg under pre-action disclosure pursuant to Civil Procedure Rules 1998 rule 31.16.
- Whether the Respondent was aware or ought to have known that he was facilitating arguable wrong-doing.
- The degree to which the information sought is confidential.
- The resources of the party trying to obtain the identity of the Intended Defendant.
- The urgency of the need to ascertain the information sought.
- Any public interest issues.
- There is a reasonable basis to allege that a wrong-doing has been committed.
- The Respondent is more than a mere witness, in that the Respondent must have in some way facilitated the wrong-doing.
- It must be intended to bring proceedings against the Intended Defendant.
The remedy is still at the discretion of the Court in any event.
Privacy –v- interests of justice
When exercising its discretion the Court may well be aware of striking a fair balance between interfering with an individual’s human rights, protecting their personal data and identifying the Intended Defendant where necessary in the interests of justice. For example the Respondent may owe the Intended Defendant independent legal duties to maintain confidentiality such as under the Data Protection Act 1988.
Burden of proof
In order to succeed in getting an order you must show there is no other way of getting the information/documentation, and that without that information you cannot have access to justice to pursue your claim.
If you require advice about the possibility of getting an NPO, or need more information from a defendant/third party prior to bringing a claim then please contact Daven Naghen on 01775 722261 or email firstname.lastname@example.org or visit our offices/write to us at 23 New Road, Spalding, Lincolnshire PE11 1DH.