December 6, 2021
EUI Ltd, an insurance company, issued proceedings against UK Vodaphone Ltd under the Norwich Pharmacal jurisdiction to obtain information relating to call records for a particular mobile phone and the cell site data showing the location of the phone during a certain period in relation to a potential home insurance policy fraud claim that it wished to pursue.
The potential fraud claim had arisen as a result of the home insurance policy holder claiming under the policy for alternative accommodation after an escape of water incident at his home. At first, the policy holder said that he was staying with his parents, which meant that, under the policy, he was entitled to a capped amount of £1,000 per month. The policy holder later said that his parents had moved out of their house to stay with relatives and had then travelled to India and that he was now renting their house from them for £1,800 per month. He provided EUI with an Assured Shorthold Tenancy Agreement between him and his mother and EUI began covering this rental sum.
EUI became suspicious when it transpired that the parents had not, in fact, travelled to India. EUI questioned whether they had vacated their home at all and believed that there might be a claim in deceit and conspiracy against the policy holder and his mother. Before issuing proceedings, EUI wished to obtain information to clarify whether the policy holder’s mother had moved out of the house, hence these proceedings against Vodaphone.
At first instance, the relief was refused. EUI appealed to the Court of Appeal.
Giving the lead judgment with which the other Justices agreed, Lord Justice Baker noted that, as set out in Mitsui & Co Ltd v Nexen Petroleum UK Ltd  EWHC 625 (Ch), three conditions must be satisfied for the court to be able to exercise the power to order Norwich Pharmacal relief:
- a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
- there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
- the person against whom the order is sought must: (a) be mixed up in, so as to have facilitated, the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
However, the power to order disclosure in such circumstances does not extend to “mere witnesses” or “bystanders”. Further, as Mr Justice Mann observed in Various Claimants v News Group Newspapers  EWHC 2119 (Ch), participation or facilitation is not the sole test and the defendant in such cases must be engaged with the wrong in such a way as to make it more than a mere witness.
At first instance, the judge was not persuaded by EUI’s argument that, in contrast to landlines, mobile phones have enabled people to lie about their whereabouts and that Vodaphone had facilitated the ability of the mother to pretend she had vacated her house and was living at another address when in fact she had remained in her house. EUI said that the facilitation of this process by Vodaphone had elevated it from being a mere witness to being a party capable of being targeted in this jurisdiction.
EUI deployed the same argument before the Court of Appeal and expanded on it, adding that the latest generation of mobile phones have apps that facilitate the location of the phone, which is an incident of modern life, and that any argument about Article 8 rights went not to the Norwich Pharmacal jurisdiction but to the exercise of that jurisdiction. In any event, there were several ways in which rights to privacy could be protected, for example by anonymisation or redaction.
Baker LJ found EUI’s principal argument misconceived. If EUI was right in thinking that the policy holder had fraudulently asserted that his parents had moved out of their home for a period to allow him and his family to occupy the house exclusively, it was arguable that his parents were involved in the wrongdoing, but there was no basis on which it could be said that his mother’s mobile phone service provider was more than a mere witness or engaged with the wrong. The fact that the phone account holder would have been able to pretend he was somewhere he was not, did not draw the phone company into his wrongdoing. It was true that the phone records might assist in establishing the truth of the parents’ whereabouts, but in that regard the phone company was manifestly a mere witness. Its position was no different from anyone else who might be able to provide evidence on that issue e.g., the neighbours to the parents’ property or the milkman.
Baker LJ also dismissed EUI’s argument that it would be difficult for its legal representatives to advise on the merits of litigation against the policy holder and his mother with the confidence required of a proposed claim in deceit without clearer evidence of wrongdoing. Baker LJ said that, on the facts, EUI had enough evidence to decide whether to commence proceedings. In any event, this argument did not alter Vodaphone’s position as a mere witness for the purpose of Norwich Pharmacal relief.
EUI also said that the policy holder and his mother would be able to concoct an explanation for the continued presence of the mother’s mobile phone in her property were they to have notice of any application for disclosure after the start of proceedings. Baker LJ disagreed and found that, in any event, the argument again did not address the clear limits of the Norwich Pharmacal jurisdiction.
Baker LJ agreed that the question of the policy holder’s parents’ Article 8 rights went to the exercise of the Norwich Pharmacal jurisdiction rather than the jurisdiction itself, but found that that had also been the approach taken by the judge at first instance.
Finally, Baker LJ said, it was possible that, if EUI were to bring a claim against the policy holder, it might be able to obtain an order against Vodaphone for disclosure of the records under CPR 31.17, provided the court was persuaded that disclosure was necessary in order to dispose fairly of the claim. However, there was no justification in law for pre-proceedings disclosure under the Norwich Pharmacal principle. The appeal was dismissed. (EUI Ltd v UK Vodaphone Ltd  EWCA Civ 1771 (24 November 2021) — to read the judgment in full, click here).