Pre-Trial Discovery of Third Parties: the UK Supreme Court Gives New Guidance on the Norwich Order

A recent decision of the UK Supreme Court (UKSC) in The Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] UKSC 55 (RFU v CIS), provides an updated statement of the principles underlying the equitable bill of discovery, which could well influence the continued expansion of the remedy in Canada. A bill of discovery in equity (often called a Norwich Order after its initial recognition in the UK case Norwich Pharmacal v Customs and Excise Commissioners [1973] UKHL 6) is an equitable remedy that compels pre-action disclosure of information in the possession of a third party. It can be useful when an aggrieved party does not have the necessary information to seek redress against a wrongdoer. For example, when an anonymous Internet user has arguably wronged the applicant, it may be possible to compel an ISP or web site owner to disclose the anonymous user’s identity in order to provide the applicant with an avenue for redress. In another example, a patent owner could seek to compel customs officials to disclose the identity of a person who may have infringed a process patent by importation. Because this extraordinary remedy can raise privacy concerns (the court-ordered disclosure of private information prior to showing a wrongful act), it is treated as highly discretionary and available only as a necessary and proportionate response in light of all the circumstances. In RFU v CIS, the UKSC upheld a Norwich Order for discovery of a third-party web site in order to identify users of the site that were selling rugby match tickets at inflated prices, in apparent contravention of the terms of purchase. While Article 8 of the Charter of Fundamental Rights of the European Union guarantees the protection of personal data, the UKSC upheld the Norwich Order as a necessary and proportionate interference with this right in the circumstances of the case. Of note, the UKSC highlighted that circumstances beyond those specific to the data-subject and the applicant can be a consideration when assessing proportionality. In this case, the UKSC gave weight to the broader motivation of the applicant, seeking to deter similar wrongful acts in the future. Norwich orders first appeared in Canada in Glaxo Wellcome PLC v MNR [1998] 4 FC 439 (CA). In Ontario, recent case law indicates a similarly broad utility for the remedy to identify anonymous online users. In York University v Bell Canada Enterprises et al (2009), 99 OR (3d) 695, the Ontario Superior Court granted a Norwich Order requiring ISPs to disclose the identity of a subscriber at a particular IP address which was the source of anonymous and allegedly defamatory e-mails and web postings. The IP address in question was itself disclosed pursuant to a first Norwich Order granted against Google, compelling disclosure of the IP address associated with the Gmail account in question. Summary by: John Lucas