In Orb ARL and others v Fiddler and another, Mr Justice Popplewell discharged a Norwich Pharmacal order following the discovery of serious failures by the applicants to fulfil their duty of full and frank disclosure. There was also significant evidence to suggest that the true purpose of the application was to gain an advantage in separate litigation with connected parties.
In reaching his decision, Popplewell J emphasised the importance of an applicant for a Norwich Pharmacal order identifying the purposes for which the information disclosed would be used if the order was made. A failure to do so might – as in this case – be fatal to the application.
This claim is connected to a long-running case worth in excess of £250 million brought by Orb A.R.L (“Orb”) and others against an individual, Mr Ruhan, and others in relation to a joint venture agreement. Orb was also the first claimant in this matter.
In September 2015, a computer hacker had approached the claimants and alleged that he had been offered money to plant child pornography on Dr Smith’s (Orb’s former CEO) or Orb’s computers. He implied that Mr Ruhan was behind this conspiracy. The hacker later alleged to other parties that, in fact, Dr Smith had paid him to invent this story in order to incriminate Mr Ruhan.
The claimants had applied for two earlier injunctions by which they obtained further information about the alleged child porn conspiracy. In the course of their investigations they found information indicating that the defendants, Mr Fiddler and Mr Anciano, held information relating to the alleged conspiracy (both had some degree of connection to Mr Ruhan).
In this application, the claimants applied for a Norwich Pharmacal order against the defendants to uncover the true identity of the source of the hacker’s instructions to plant the child porn. They were granted the injunction, which ordered the defendants to provide all telephones and telephone records and to provide an affidavit which identified all of those that they were acting for and under whose instructions they had orchestrated the scheme.
Mr Anciano applied for the order to be discharged. His application was based on four main grounds:
- There had been a failure to make full and frank disclosure by the claimants.
- The evidence of wrongdoing put before the court by the claimants was incomplete, unreliable and in places incredible.
- There was insufficient evidence to prove Mr Anciano was involved in the alleged wrongdoing.
- The purpose for which the claimants sought the information was illegitimate.
The court decided that the first and fourth of the grounds raised by Mr Anciano justified setting the order aside in relation to both defendants.
Popplewell J found that the Norwich Pharmacal application had been pursued in the hope of acquiring evidence that would discredit Mr Ruhan and enable the claimants to attain an advantage in the main proceedings. He held that the claimants had failed on eight counts to make full and frank disclosure, identifying numerous abuses of court processes to apply pressure to Mr Ruhan.
Popplewell J suggested that, based on the claimants’ previous conduct in court, the main purpose of the application was to harass Mr Ruhan. He held that there had never been a legitimate basis for the Norwich Pharmacal order and that the claimants had misled the court; he concluded that Dr Smith had been the driving force behind the abusive application.
In reaching his conclusion, Popplewell J emphasised the importance of an applicant for a Norwich Pharmacal order identifying the purposes for which the information disclosed would be used if the order was made. This was necessary so that the court could determine whether the information was to be used for a legitimate purpose (and to limit the permitted use of the information to those purposes if disclosure was granted). The applicant had to provide evidence in support of the intended purposes, and not merely assert them in his submissions; here the judge commented that he would have expected at the very least a clear statement in an affidavit. He noted that this was “especially important” in this case, with its history of abuses of process designed to harass Mr Ruhan and attempts to use the Norwich Pharmacal jurisdiction for illegitimate purposes. A failure to identify such purposes might – as in this case – be fatal to the application.