If you are planning to obtain a pre-issue Norwich Pharmacal order you may wish to have a re-think following Master Matthews’ judgment in Towergate Underwriting Group Limited v Albaco Insurance Brokers Limited.
Master Matthews held no reservations in asserting that an applicant for a Norwich Pharmacal order must show that it has issued a claim form before its application will be allowed.
This view prevailed despite wording in the Chancery Guide (2015), which stated:
“Although applications for disclosure pursuant to Norwich Pharmacal v Customs and Excise Commissioners  AC 133,  2 All ER 943, HL may be made under Part 7 or Part 8 (as the case may be), nevertheless if the application is or is thought likely to be uncontested the court may entertain in the alternative an application under Part 23 supported by evidence.”
Master Matthews noted “with great respect to the learned authors of the Chancery Guide” that the guide was “neither a statutory nor a judicial authority itself” and that it was therefore well within his power to render a decision which conflicted with its advice.
Much of the decision in Towergate rested upon the Master’s finding that the failure to issue a claim before pursuing an order resulted in applications being dealt with outside of much of the guidance contained within the Civil Procedure Rules (such as rules regarding dealing with parties outside of the jurisdiction, access to documents on the court file, timetables and procedural steps, provision of information, joinder of parties, change of solicitor etc.). Some concern was also raised – interestingly – regarding the possibility of applications not being “readily identifiable” if they were not attached to a claim number.
Master Matthews showed a keenness to distinguish between the purposes of a Norwich Pharmacal order and an application for pre-action disclosure, noting that “the whole point of an application for a Norwich Pharmacal order is to obtain information to enable a claim to be made which otherwise could not be made. It is not the purpose of such proceedings to dispose early of a claim which would fail. That is instead the point, or one of the points, of the application under CPR rule 31.16”.
In summary, the Master held that applications under CPR 23 do not provide sufficient rules or procedural guidelines in order to support an application without reference to further rules being required. This, he explained, was “precisely because it is anticipated that all such applications will take place within existing claims to which all [these] rules in the CPR apply”. On this basis, Master Matthews refused to grant permission to the bringing of a Norwich Pharmacal order where a claim had not already been issued, declaring that should the applicant wish to apply for an order “it must do so by claim form”.
As this is a High Court decision it is unclear whether an appeal will be brought or whether this decision will be later undermined by rulings in a higher court, but for the present time, this is a significant point to be considered by all parties engaging in pre-action strategic applications.
Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd  EWHC 2874 (Ch). The judgment in this case is available on Westlaw.