Monday, 6 July 2015

Norwich Pharmacal Orders Explained Part 3

Gagging Clauses
The terms of the Order the Applicant would like the Court to grant needs to be carefully drafted. Commonly, the Order also contains a gagging clause against the Respondent to stop them informing the Defendant that the application has been made. This is often because the Applicant does not want the Defendant being tipped off as it might be considering obtaining a Without Notice Freezing Order against it.
The Norwich Pharmacal Order, once granted, must be served on the Respondent and if it contains a gagging clause, this should be explained clearly to the Respondent at the time of service. The Norwich Pharmacal Order may also have a Penal Notice describing the criminal consequences of failing to adhere to the Norwich Pharmacal Order’s terms, including any gagging clause. Personal service is the ideal type of service as the gagging clause and Penal Notice can be clearly explained and it can make any consequential committal application against the Respondent (if the Order is breached in any way) easier to secure.
Restrictions on use of documents obtained under a Norwich Pharmacal Order
Any documents and/or information obtained as a result of the Norwich Pharmacal Order could only be used for the purpose of the proceedings in which they have been disclosed. They could not be used for any other proceedings and/or released to any other party. The only exceptions to this are where the Court gives permission or consent is provided by the owners of the documents.
Costs of the application
In terms of the costs of the application, as described above it is normal that the Applicant bear the Respondent’s costs of the Norwich Pharmacal Order. This is something for the Applicant to bear in mind as a result of making an application for aNorwich Pharmacal Order.
Can a Norwich Pharmacal Order be challenged?
The answer is yes on the following basis:
 1. The grounds set out above have not been met;
2. There are duties of confidentiality which the Court considers would not allow an Order to be made;
3. The release of the information may expose the Respondent to proceedings for a criminal offence and therefore, the Respondent invokes the right against self-incrimination.
It may be that the Respondent simply applies to Court for the grounds of the Norwich Pharmacal Order to be varied. This could be on the basis of reasonableness, proportionality and cost.
Furthermore, the Respondent may seek an extension of time to comply with the terms of the Order, particularly if they are onerous.
Can Norwich Pharmacal Order’s assist foreign proceedings?
It is a developing area of the law as to whether Norwich Pharmacal Orders can be obtained in order to support foreign proceedings. Whilst formerly, Norwich Pharmacal Orders were not allowed to be used in such circumstances, the case law has developed insofar as the Courts will now consider applications against Respondents in support of foreign proceedings. Indeed, Norwich Pharmacal Orders can therefore be used to obtain documents that are subsequently used in proceedings in foreign jurisdictions.
Should you require any further assistance at all in this area of the law, please contact one of our fraud specialists on 020 7841 0390 and we will be happy to have a free consultation with you.