UK: "Disclose At Your Peril" – English Court Of Appeal Addresses Appropriate Response To Threatened Norwich Pharmacal Applications

Last Updated: 18 June 2019
Article by Robert Slattery and James Whitaker

The Court of Appeal's recent decision in Jofa Ltd & Anor v Benherst Finance Ltd & Anor1 provides a timely reminder of issues that commonly arise, as well as important practical guidance, in the context of requests for disclosure from a third party and applications, or threatened applications, for "Norwich Pharmacal" orders, and the competing pressures of responding to a threatened order on the one hand, whilst honouring duties of confidentiality on the other. The key take away message for respondents to such requests seems to be: tread carefully. Resisting disclosure of information, particularly if it is potentially confidential, until a court order has been issued, will be a reasonable position to adopt. Indeed, where duties of confidentiality are involved, complying with a request for disclosure in the absence of an order may be hazardous.

Norwich Pharmacal Orders, familiar territory for many financial institutions, reflect the equitable jurisdiction of the Court to order a third party – not directly involved in a dispute – to provide to the applicant information or documents thought to be relevant to a wrong that has been done, to enable the applicant to pursue the alleged wrongdoer. The principle was first established in the seminal case of Norwich Pharmacal v Customs and Excise Commissioners 2 and is a valuable tool for prospective litigants seeking to establish the basis of putative claims.

Jofa v Benherst

The present case involved two companies, Benherst Finance Limited and Chestone Industry Limited (the "Investors"), seeking Norwich Pharmacal relief against small company, Jofa Limited ("Jofa"), owned by Mr Farah, as well as against a bank. The Investors had participated in a joint venture to purchase and redevelop a property in London SW7 (the "Project") and had engaged a company called JMT Property Limited ("JMT"), whose sole director and shareholder was Mr Elie Taktouk, to manage the Project. During the Project, between February 2015 and February 2016, JMT made periodic cash calls, often supported by invoices (certain of which were purportedly issued by Jofa), said to be required to pay contractors and suppliers. However, during the course of a review of the Project by a chartered surveyor in May 2016, it became apparent that far less work had been done to redevelop the property than Mr Taktouk had represented. Indeed, the value of the work done was estimated to be in the region of only £250,000, significantly less than the total value of the cash calls of some £2.2 million, of which the Investors had paid their share of approximately £925,000. Consequently, the Investors commenced proceedings alleging that the periodic cash calls made by Mr Takouk had been fraudulent.

In June 2017, the Investors' solicitors wrote to Mr Farah informing him that they were instructed to pursue a criminal investigation and, thereafter, to consider initiating a private prosecution against his company and/or him personally, as well as against Mr Taktouk, on the basis of what were said to be reasonable grounds for believing that criminal offences had been committed, including conspiracy to defraud and fraud by false representation.  The letter, which contained a long list of questions, noted that Mr Farah was under no obligation to answer the questions, and that any answers he gave might be used in evidence in any prosecution that might follow.  In addition, the letter noted that should Mr Farah fail to answer the questions, the Investors might seek to rely on such failure as evidence against him, and threatened to refer the matter to "any criminal investigation agency, including the police" and to pursue confiscation proceedings following any criminal prosecution.  During a subsequent telephone conversation with the Investors' solicitors, Mr Farah, who denied knowing anything about the invoices in question, said that he would be prepared to meet the solicitors for a formal interview, which would be conducted under caution. 

In December 2017, by which time the interview had still not been arranged despite various exchanges between the parties and their representatives, the Investors' solicitors issued a "pre-action letter" to Mr Farah's representative, indicating that the Investors would seek a Norwich Pharmacal order in the High Court in respect of certain categories of documents.  No response was provided to the letter and, in March 2018, the Investors issued an application for the order, supported by a lengthy witness statement and extensive supporting documents.  The Investors stated that they would seek their costs of the application in circumstances where Jofa and Mr Farah should have acceded to the document requests voluntarily.  At the hearing in March 2018, Mr Farah, who attended as a litigant in person, indicated that if the court ordered Jofa and Mr Farah to disclose certain documents identified by the Investors in a draft order, he would comply. 

The Investors also sought, at the same time, Norwich Pharmacal relief requiring JMT's bank to disclose bank statements and other documents relating to the bank accounts of Mr Taktouk and JMT.  The bank had indicated in correspondence that, although it did not consent, it would not oppose the order sought, and the Court was told that the Investors had agreed to pay the bank's costs of complying with any order that was made, but that no order for costs of the application should be made. 

The first instance judge awarded both of the Norwich Pharmacal orders sought.  Addressing the issue of costs, the judge adopted as her starting point the position that "the usual order would be for no order to be made for the costs of the application", and was satisfied that it was appropriate to make a costs order against Jofa and Mr Farrah, on the basis that a proportion of the Investors' costs would have been avoided had a response to the December 2017 letter been provided, or if Jofa and Mr Farah "had taken a neutral position, for example".  Mr Farah was ordered to pay £23,000 in costs, which he appealed.

The Court of Appeals' findings – responding to Norwich Pharmacal applications

The Court of Appeal quickly identified that the first instance judge had adopted the wrong starting point on the issue of costs for Norwich Pharmacal applications; in fact the correct starting point is that the applicant should normally be ordered to pay the costs of the party subject to the order to give disclosure3 .  As such, the Court of Appeal was required to exercise its own discretion as to the extent of the presumption and the circumstances which would justify a departure from the rule.  

In reaching its conclusion that the costs order against Jofa and Mr Farah should be set aside, the Court of Appeal noted the following important principles:

  • Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party, particularly given that the respondent to an application would have no means of recovering costs from the wrongdoer.
  • While the Investors had initially made allegations of wrongdoing against Jofa and Mr Farah, those allegations were not maintained by the time of the application; and the Investors' application had not been made under CPR 31.16 on the basis of a prospective claim.
  • It was hard to envisage circumstances in which it would be just to award costs against a respondent to a Norwich Pharmacal application where the respondent, before agreeing to disclose the documents, "has done no more than require the applicant to satisfy the court that such an order is appropriate".
  • The starting point was that the respondent to a Norwich Pharmacal application does not owe any legal duty to the applicant to provide information without a court order, and is entitled to require the matter to be submitted to the court at the expense of the party seeking disclosure.
  • Jofa and Mr Farah had not in fact opposed the Investors' applications; indeed, Mr Farah had indicated that he would cooperate with enquiries provided that his and Jofa's costs of doing so were reimbursed, and this requirement was a reasonable one.
  • While there is no pre-action protocol that applies to Norwich Pharmacal applications, it was reasonable to expect a party who receives a request to provide information, supported by evidence that the party may have been mixed up in the wrongdoing (albeit innocently), to respond to that request, explaining, if relevant, the grounds on which such an application would be opposed. In the present case, however, while Mr Farah had not responded to the December 2017 letter, it was hard to see how the Investors had been prejudiced by that failure to respond, given that they would still have had to make the application if a response had been provided indicating that the material would not be disclosed in the absence of a court order.

The Court also sounded a cautionary note in the particular context of banks faced with Norwich Pharmacal applications, in light of banks' duties to their customers to keep the customers' affairs confidential. While those duties do not require the bank to oppose an application for disclosure, as Lord Justice Leggatt observed, "if a bank were to give such disclosure without an order from the court, it would be acting at its peril, as it would be exposed to a potential claim by its customer for breach of confidence." In the present case, this distinguished the bank's position from that of Jofa which, as a building contractor, would not ordinarily owe such duties to maintain clients' information confidential.

Key take aways

Jofa provides useful guidance for parties faced with threatened applications for Norwich Pharmacal relief.  While requests should not be ignored (and there may be costs consequences of doing so), providing disclosure in the absence of an order may entail significant risks, particularly if potentially confidential information is involved.  Adopting a neutral position in respect of an application, neither consenting to, nor opposing, the application, may also reduce the risks of a respondent being ordered to pay the costs of the application.  With regard to the costs of complying with Norwich Pharmacal orders, the general rule is that the applicant should pay the costs of the party ordered to provide disclosure.  


1 [2019] EWCA Civ 899 (24 May 2019)

2 [1974] AC 133

3 Cartier International AG v British Sky Broadcasting Limited [2018] UKSC 28, approving Totalise Plc v The Motley Fool Ltd [2001] EWCA Civ 1897

Visit us at

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions