A party does not always have all of the necessary information
available to make an informed decision to start a lawsuit. This can
arise where anonymous and defamatory e-mails have been sent, where
a device that may infringe a patent is not publicly available, or
where financial records that demonstrate the nature and extent of a
fraud are exclusively in the hands of a bank.
Courts have fashioned a mechanism to compel innocent third
parties to provide documents and information to a potential
plaintiff for the purposes of starting a lawsuit. This remedy is
available where the applicant believes it has been wronged and
needs the third party's assistance to determine how to pursue
its legal remedies.
Commonly known as a Norwich order, this procedure is a valuable
tool in litigation where critical information is unknown and is
necessary to properly consider whether litigation should be
Taking its name from Norwich Pharmacal Co. v. Commissioners
of Customs & Excise,1 the original Norwich
order permitted a pharmaceutical company to obtain the identity of
a party secretly importing the company's drug, which was
patentprotected, from the customs authorities. In requiring the
third-party customs authorities to disclose the identity of the
unknown drug smuggler, the House of Lords stated: "A person
who gets mixed up in the tortious acts of others so as to
facilitate their wrong-doing... may incur no personal liability but
he comes under a duty to assist the person who has been wronged by
giving him full information and disclosing the identity of the
Canadian courts have imported the Norwich order. When faced with
an application for a Norwich order, the court will consider
(a) the applicant has shown a valid, bona fide or
(b) the applicant has established that the third party from whom
information is sought is somehow involved in the acts complained
(c) the third party is the only practicable source of the
(d) the interests of justice favour the obtaining of disclosure
from the third party.
Norwich orders have been frequently granted where a bank is in
receipt of funds allegedly procured by fraud. In such a case, the
Court has held that the bank is involved in the case because
without its involvement the wrongful receipt and possible transfer
of funds could not have occurred. It is the confidential
information possessed by the bank that will lead the applicant to
the information required to determine whether a legal proceeding is
Norwich orders have also been granted to obtain the identity of
persons using Gmail, Google's free, Internet-based e-mail
service, to send anonymous and defamatory e-mails. As with the
banks, there is no claim that Google or the Internet service
provider is complicit in the wrongdoing, rather the facilitation of
the anonymous communications amounts to an involvement beyond being
a mere witness. Particularly in cases such as this, it is unlikely
that the applicant could ever learn the identity of the potential
defendant by any other means than disclosure from Google and/or the
Internet service provider. Norwich orders are not granted lightly.
The court is required to balance the benefit to the applicant of
revealing the desired information against the prejudice to the
alleged wrongdoer in releasing the information. The Court will
consider the nature of the information sought, the degree of
confidentiality accorded to the information by the party against
whom the order is sought, and the degree to which the requested
order curtails the use to which the information can be put. Courts
will also consider constitutional issues, such as freedom of
expression, when faced with such a motion.
1.  A.C. 133 (H.L.) at 175
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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