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.


Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

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