Norwich Orders

Norwich Pharmacal Order

A Norwich order is a pre-action discovery mechanism.

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain the identity of the goods. The Commissioners, in the course of performing their duties, had information that would identify the imports.  Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers. If the third party bears expense in assisting compliance with an order, the person seeking assistance is bound to reimburse those expenses. That expense however would be reflected in an award of damages against the ultimate tort-feasors, and this be recovered after the final hearing.

Canada and the Norwich Order

The Court in Isofoton S.A. v. Toronto Dominion Bank, outlined five elements that a court should consider before granting a Norwich order.

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Norwich Order as a Pre-Trial Remedy in Fraud Cases

An article by John Polyzogopoulos, a partner of Blaney McMurty LLP, in the January 2008 edition of the Commercial Litigation Update explains a Norwich order can help victims of fraud determine what happened to the money.

The recent decision of Justice James Spence in Isofoton S.A. v. The Toronto-Dominion Bank should be of interest to anyone who suspects they may have been the victim of fraud. In that case, Justice Spence granted a Norwich order to obtain the banking records of a party suspected of defrauding the applicant of over $3 million. The unique nature of the disclosure order was that it was directed not to the alleged fraudster, but to the fraudster’s bank. The disclosure order was made to assist the applicant in investigating the fraud and determining what happened to its funds.

The article also illustrates the need for due diligence research prior to entering into an agreement with a previously unknown supplier. Once the victim realised that the supplier was not acting in good faith, they hired a PI who determined that the the supplier was a company without the assets necessary to deliver the contracted goods.