Costs Rule for Norwich Pharmacal Orders Confirmed

The Court of Appeal has confirmed that in Norwich Pharmacal applications, the plaintiff must usually cover the defendant’s costs of providing information to identify wrongdoers. In this case, Twitter was entitled to its costs, despite challenging the order’s wording. Our Commercial Disputes team explores how the ruling highlights that Norwich Pharmacal applications remain costly, though proposed reforms may make them more affordable.

Norwich Pharmacal orders essentially involve an application to court to compel a defendant to reveal the identity of an anonymous third party. Once that information has been obtained, it allows the plaintiff to proceed against the identified third party. The type of order involved, founded on the court’s inherent jurisdiction, was first granted in the English case of Norwich Pharmacal Co v Customs and Excise Commissioners[1] and was subsequently approved by the Irish Courts in Megaleasing UK Ltd v Barrett.[2]

The stated rationale for Norwich Pharmacal orders is that a person who has become mixed up in the wrongdoing of another has a "duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers".

The Court of Appeal[3] recently ruled on the appropriate costs order to make for an application for a Norwich Pharmacal order. It also confirmed the usual order will be that the costs of the party to give the information should be borne by the plaintiff, especially where they have indicated on affidavit they would do so.

Background

It is well established that, in order to obtain a Norwich Pharmacal order, the plaintiff/applicant must establish a number of things. They must demonstrate very clear proof of wrongdoing and show that the defendant/respondent is implicated in it, even if not directly responsible. The application seeks disclosure of the wrongdoers’ identity – information that the defendant/respondent can provide but which the plaintiff/applicant cannot otherwise obtain.

The usual costs order in seeking a Norwich Pharmacal order is that the plaintiff/applicant bears the costs of the relevant defendant/respondent providing information as to the identity of the wrongdoer. In this case, Moore & Morris v Harris & Twitter, the respective plaintiffs brought defamation proceedings against the first defendant following a number of posts on Twitter. They also sought a Norwich Pharmacal order against Twitter seeking the disclosure of information regarding several Twitter accounts. The motion was issued on the basis, and expressly confirmed on affidavit, that the plaintiffs would cover Twitter’s costs of the motion and complying with the order. While Twitter did not oppose the making of the order, the precise terms of the order were not agreed and, as a result, Twitter addressed the court. The High Court accepted that Twitter was “entitled to come before the court and to have those orders thrashed out and they did so” on the basis their costs would be paid. However, the plaintiffs appealed, claiming that, because Twitter contested the terms of the order, the plaintiffs should be relieved of their sworn undertaking to cover Twitter’s costs in this regard.

Decision

Mr Justice Noonan giving the lead judgment for the Court of Appeal noted that the principle of ‘winners and losers’ did not really apply to the circumstances of this case. Accordingly, Mr Justice Noonan stated that Section 169 of the Legal Services Regulation Act 2015 was not particularly relevant. Rather, the application was “from the get go… based on an undertaking by the plaintiffs to discharge their costs.” The judge noted that while the plaintiffs won on some points and lost on others regarding the wording of the order, this was not the kind of complex case, similar to the Veolia Water case, that required breaking down each issue and dividing costs between them. Instead, since the plaintiffs accepted Twitter was an innocent party, they must have contemplated that the precise terms of the order would involve some level of dispute. The judge rejected the plaintiffs’ claim that they should not have to pay Twitter’s costs just because Twitter disputed the precise wording of the order rather than the making of the order itself.

He noted that the High Court (Mr Justice Sanfey) had approved a costs order which gave Twitter its costs and recorded that costs and other discretionary orders “will not be interfered with unless they fall outside the range of judgment calls that are reasonably open to the trial court…. in the absence of a clear error of principle or injustice arising.” He specifically cited the Supreme Court:[4]

“It’s also clear that the exercise by the High Court of its discretion in calibrating these various considerations should not lightly be upset by an appellate court… The exercise of such restraint by an appellate court has been repeatedly stressed in the context of first instance decisions in respect of costs…”

In light of those principles, Mr Justice Noonan expressed the view that there was no basis to suggest that the costs order made here was not well within the trial judge’s discretion or the range of judgment calls that were open to him.

In a short concurring judgment, Ms Justice Faherty expressed the view that it was “not sufficient, or in order, for the plaintiffs to now seek to drill down into the nitty gritty of what was won or lost as between the parties in the substantive hearing.” This ignored both the nature of the application and the trial judge’s ruling, but also the plaintiffs’ own acknowledgement and undertaking to bear the costs.

Comment

The decision is a useful confirmation that, in Norwich Pharmacal applications, the usual costs order is for the plaintiff to cover the costs of the defendant ordered to provide information as to the identity of the wrongdoers. This is especially so where they have already confirmed on affidavit they would discharge those costs. However, the desire of the plaintiffs here to avoid Twitter’s High Court costs does highlight the fact that Norwich Pharmacal orders are currently only available in the High Court, which makes them expensive. The jurisdiction may be extended to the Circuit Court. Indeed, the Defamation (Amendment) Bill 2024 includes a draft provision for the Circuit Court to issue ‘identification orders’, which are effectively Norwich Pharmacal orders, directing an intermediary service provider to identify an anonymous poster of defamatory online material. If enacted, this may not only make applications less expensive but eliminate appeals, such as this, aimed at avoiding the usual cost associated with a Norwich Pharmacal application.

For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] [1974] AC 133

[2] [1992] 1 IR 219

[3] Moore & Morris v Harris & Twitter [2023] IECA 336. The case involved two separate sets of proceedings which were heard as a single appeal.

[4] Heffernan v Hibernia College [2020] IECA 121, per Murray J.