Getting Disclosure of Identity of Potential Defend

11th February 2015
Getting Disclosure of Identity of Potential Defend image

Getting Disclosure of Identity of Potential Defend

Introduction

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 daven.naghen@maplessolicitors.com or visit our offices/write to us at 23 New Road, Spalding, Lincolnshire PE11 1DH.


Maples supporting Macmillan Coffee Morning image

Maples supporting Macmillan Coffee Morning

On 29th September 2017 Maples Solicitors LLP will be hosting a coffee morning as part of Macmillan’s “World’s Biggest Coffee Morning”.

Tea, coffee and cakes will be served from 10:00am until 1:00pm and all donations received will go to Macmillan Cancer Support to assist them with providing medical, emotional, practical and financial support to those facing cancer and their families.

At the same time, Maples will also be running a free Wills, Lasting Powers of Attorney and Probate clinic so that whilst you are in the office you may take the opportunity to discuss any of these with one of the Private Client Team with no obligation to commit. You can use the time to raise any questions you may have about making a Will, who you could appoint as Executors, whether you need a Power of Attorney or how a Power of Attorney works, for example.

Maples hope to see their existing clients join them for the coffee morning and very much look forward to meeting new people- everyone is welcome!

If you would like to discuss any matters in relation to Wills, Lasting Powers of Attorney or any Probate related matters prior to the coffee morning then please contact one of the lawyers in our private client team:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office on 01775 722261 and ask to speak with one of the team.

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Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

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