It's hard to start a lawsuit when you don't know
who you're suing. What can potential claimants do when they
have been wronged but lack the essential information necessary to
start a lawsuit?
The answer to this question came in 1974 when the ancient
equitable bill of discovery was resurrected in the form of what is
now known as the Norwich Order.
Where granted, Norwich Orders compel innocent third
parties to disclose information and/or documents a claimant
requires before commencing a lawsuit that could not otherwise be
obtained. They can assist claimants to advance meritorious claims
by preserving assets, identifying potential defendants and
uncovering actionable wrongs.
Norwich Orders are a controversial and exceptional
equitable remedy. They can burden innocent third parties by forcing
them to disclose information or documents and force disclosure of
confidential information. These are effects courts will avoid
unless a claimant can show why the disclosure is just and
necessary in the circumstances.
The Norwich Ordertakes its name from the 1974 British
case, Norwich Pharmacal Co. v. Commissioners of Customs
and Excise. The Court granted an Order which
compelled the third party customs authority to disclose the
identity of the unknown individual who had been smuggling the
claimant's patented drug across the border without
permission. In granting the Order, the court stated: "a
person who gets mixed up in the tortious acts of others so as to
facilitate their wrongdoing 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 first adopted the Norwich Order in the
1998 decision, Glaxo Wellcome PLC v. Minister of
Two years later, the Alberta Court of Queen's Bench
approved Norwich Orders in the case Alberta
Treasury Branches v. Leahy. The Court
considered an application by the claimant, ATB, to obtain
disclosure of financial documents belonging to a former ATB
official whom ATB suspected of corruption.
Before granting the Norwich Order, the Court considered
the following five factors, which have since been adopted in
numerous subsequent decisions:
Whether the claimant has provided sufficient evidence to raise
a valid claim;
Whether the claimant has shown that the third party was somehow
involved in the wrong;
Whether that third party is the only practicable source of
Whether that third party could be indemnified should any harm
come of the order, if granted; and
Whether the interests of justice favor the disclosure.
Norwich Orders are increasingly being used where a
claimant is defamed online by an anonymous author. In such cases,
the administrators of the websites or Internet Service Providers
are the innocent third parties who have the information the
claimant seeks and could not otherwise obtain – the
identity of the wrongdoer.
In these situations, courts must strike an appropriate balance
between freedom of expression and privacy interests of anonymous
defamers on the one hand and the reputational interests of the
claimants on the other.
In the 2009 Ontario decision, York University v.
Bell Canada Enterprises, the claimant sought a
Norwich Order to compel the Internet Service Providers to
disclose the identities of anonymous authors of defamatory emails
and web postings.
After considering the Leahytest, the
Court decided the claimant's equitable right to obtain the
information outweighed all other considerations, including the
author's right to privacy. The Court reasoned that the
author could not have a reasonable expectation to privacy in
relation to the use of the Internet for the purpose of publishing
In August 2012, our firm successfully obtained Norwich
Orders after our client was anonymously defamed on several websites
and blogs, including Facebook. The Orders, among other things,
compelled Facebook to disclose the identities of the individuals
responsible for administering the defamatory Facebook Pages.
While only rarely invoked in the past, Norwich Orders
are gaining increased attention in Canada and worldwide, as tool
used for a number of purposes including identifying individuals
involved in online defamation or other tortious or fraudulent
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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