Case Comment: RFU v Viagogo – Norwich Pharmacal jurisdiction restated
27 Tuesday Nov 2012
The recent judgment of the Supreme Court in The Rugby Football Union v Consolidated Information Services Limited (formerly Viagogo Limited)  UKSC 55 provides a forceful restatement by the highest authority in this jurisdiction of the court’s power to grant third party disclosure orders under the principle originally laid down by the House of Lords in Norwich Pharmacal Co v Customs & Excise Commissioners  AC 133.
In that case, Lord Reid stated at paragraph 12:
“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”
Traditionally, the following three conditions must be satisfied to obtain a Norwich Pharmacal order:
1. A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer.
2. There must be a need for the order to enable an action to be taken against the ultimate wrongdoer.
3. The person against whom the order is sought must be “mixed up” in the wrongdoing so as to have facilitated it and must be able, or likely to be able, to provide the information necessary to enable redress to be sought.
Norwich Pharmacal applications have over the years been used in a whole variety of situations where the aggrieved party does not have the necessary information to seek redress against a wrongdoer. In more recent times, Norwich Pharmacal orders are particularly commonly granted in cases where information is sought from internet intermediaries in order to bring proceedings against anonymous internet users, for example for defamation, breach of privacy or copyright infringement.
However, this is a discretionary remedy and the courts will not always exercise their discretion in favour of granting Norwich Pharmacal relief; it must be necessary and proportionate in all the circumstances of the case (Ashworth Hospital Authority v MGN Ltd  1 WLR 2033, at paragraphs 36 and 57 per Lord Woolf CJ).
In Sheffield Wednesday Football Club Ltd v Hargreaves  EWHC 2375 (QB), Mr Justice Parkes refused to grant a Norwich Pharmacal order requiring the disclosure of the names and IP addresses of certain Sheffield Wednesday fans who had made abusive postings on a fan website. This was on the basis that it was not proportionate to do so because the postings were “barely defamatory or little more than abusive or likely to be understood as jokes” (paragraph 17). However, he did grant the relief in respect of other postings which he saw as more serious.
Similarly, in the recent case of Hilali Noordeen v Mrs Joyce Hill and the Health Research Authority  EWHC 2847 (QB), Mr Justice Males refused to grant a Norwich Pharmacal order where there was “no possibility” of Mr Noordeen succeeding in his proposed defamation claim and where even if such a claim could be made out, it would be likely to be met by a defence of qualified privilege. The judge expressed concerns that “The ready grant of Norwich Pharmacal relief could well operate as a chilling factor” in circumstances where there was a public interest in the statements being made in the first place.
The facts of the Rugby Football Union (“RFU“) case are as follows.
The RFU is the governing body for English rugby and owner of Twickenham stadium. It is responsible for issuing tickets for international and other rugby matches played at the stadium. The RFU’s main objective in selling tickets is not to generate profit but to promote and develop the sport and enhance its popularity. Ticket prices are therefore kept to a minimum. The RFU’s terms and conditions provide that the resale or advertising of tickets at above face value constitutes a breach of contract rendering the ticket null and void.
Consolidated Information Services Limited (formerly Viagogo Limited) (“Viagogo“) was a secondary ticketing website which facilitated the resale of tickets by allowing members of the public to advertise tickets that they wished to sell. Interested purchasers could then buy the tickets from those who wished to sell them and Viagogo took a percentage. The website therefore provided a means by which people could sell tickets anonymously at the going market price.
The RFU sought a Norwich Pharmacal order requiring Viagogo to provide identifying information for individuals involved in the sale and purchase of tickets for certain rugby matches using the Viagogo website. The purpose of this was to enable the RFU to take action against those individuals.
At first instance, Mr Justice Tugendhat granted the order, finding that there was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of those tickets had been guilty of breach of contract and/or conversion  EWHC 764 (QB). He found that the RFU was seeking redress for these arguable wrongs, that the information was necessary to obtain that redress and that it was appropriate to exercise his discretion to grant the relief sought.
Viagogo appealed on the basis that the grant of a Norwich Pharmacal order would constitute an unnecessary and disproportionate interference with the rights of the alleged wrongdoers, in particular those rights derived from Article 8 of the Charter of Fundamental Rights of the European Union (“the Charter“), which guarantees the protection of personal data. The appeal was dismissed by the Court of Appeal  EWCA Civ 1585. In relation to the question of whether the order would constitute unacceptable interference with the personal data rights of the alleged wrongdoers, the Court of Appeal held that such interference was proportionate in light of the RFU’s legitimate objective in obtaining redress for the arguable wrongs.
Viagogo then appealed to the Supreme Court. Its argument was essentially confined to the claim that granting a Norwich Pharmacal order would involve a breach of Article 8 of the Charter.
The Supreme Court’s decision
The appeal was heard by a five justice panel of Lady Hale and Lords Phillips, Kerr, Clarke and Reed. Lord Kerr gave the judgment, with which the other four judges concurred.
Lord Kerr reiterated the original Norwich Pharmacal case and noted that later cases have emphasized the need for flexibility and discretion. He also confirmed that it is not necessary that the applicant intends to bring legal proceedings in respect of the alleged wrong. Any form of redress, including for example the dismissal of an employee, will suffice (British Steel Corporation v Granada Television Ltd  AC 1096, 1200 per Lord Fraser of Tullybelton).
On the question of whether the granting of a Norwich Pharmacal order was a “necessary and proportionate response in all the circumstances“, Lord Kerr noted that the main purpose of the remedy was to do justice and that this would involve “a careful and fair weighing of all relevant factors” (at paragraph 17). These include:
(i) The strength of the possible cause of action contemplated by the applicant.
(ii) The strong public interest in allowing an applicant to vindicate his legal rights.
(iii) Whether the making of the order will deter similar wrongdoing in the future.
(iv) Whether the information could be obtained from another source.
(v) Whether the respondent knew or ought to have known that he was facilitating arguable wrongdoing.
(vi) Whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result.
(vii) The degree of confidentiality of the information sought.
(viii) The privacy rights under article 8 of the ECHR of the individuals whose identity is to be disclosed.
(ix) The rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed.
(x) The public interest in maintaining the confidentiality of journalistic sources.
Viagogo tried to argue that in conducting this balancing exercise, the court should evaluate the impact that disclosure will have on the individual concerned against the value to the applicant of that particular information, but without taking into account its value as part of a broader context, for example the potential deterrent effect that the making of an order might have on others (see paragraph 36).
The court found this approach to be artificial and contrived. It held that whilst the facts of each case must be considered, “…this does not mean that they should be placed in a hermetically sealed compartment so that their possible impact on issues going well beyond their significance to the person whose personal data are sought is ignored” (see paragraph 40). Lord Kerr then went on to say that:
“There is no logical or sensible reason to disregard the wider context in which the RFU wants to have access to this information. Their desire to prevent the future sale of tickets for international matches at inflated prices is intimately connected to the application for the Norwich Pharmacal order. The ability to demonstrate that those who contemplate such sale or purchase can be detected is a perfectly legitimate aspiration justifying the disclosure of the information sought. There is no coherent or rational reason that it should not feature in any assessment of the proportionality of the granting of the order.”
Having conducted the balancing exercise, the court was satisfied that, taking into account all of the circumstances, the RFU’s interest in obtaining the information outweighed the rights of the data subjects. The appeal was therefore dismissed.
The decision of the Supreme Court in the RFU case provides a welcome re-statement of the factors to be taken into account when deciding whether disclosure is necessary and proportionate. It is now clear that the key question is whether disclosure is necessary and proportionate in all the circumstances.
Going forward, because of the ability to look at the broader context, the decision may mean that it is easier for a wronged party to obtain Norwich Pharmacal relief. Had the argument put forward by Viagogo that the court should not take the broader context into account succeeded, this would almost certainly have meant that Norwich Pharmacal orders were limited to only the most serious of cases. On the contrary, Lord Kerr stated in his judgment that the interests of the alleged wrongdoer might only “…in some limited instances, displace the interests of the applicant for the disclosure of the information even where there is no immediately feasible alternative way in which the necessary information can be obtained” (see paragraph 46, my emphasis).
As mentioned above, it is also clear from the judgment that any form of redress will suffice as grounds for an application for a Norwich Pharmacal order. The principle may therefore apply in a broad range of contexts, including arbitrations, compensation schemes and disciplining employees.
But the court did not address the further potential reaches of Norwich Pharmacal relief. In at least one case, P v T Ltd  1 W.L.R. 1309, a Norwich Pharmacal order was granted where the claimant was unable to prove wrongdoing at all. Also in Ashworth v MGN  1 W.L.R. 2033, the House of Lords saw no reason why a Norwich Pharmacal order could not be granted to identify the perpetrator of a crime to the victim. The legitimacy of these extensions of the Norwich Pharmacal regime thus remains somewhat uncertain.
Also, interestingly, following certain phone hacking cases (for example the claim brought by Hugh Grant and Jemima Khan) in which the court ordered disclosure against the Metropolitan Police even though they were not mixed up in the wrongdoing, the Supreme Court did not tackle this issue. This was probably because Viagogo was by comparison with other situations, significantly mixed up. Indeed, it was not disputed that the sale of tickets in the manner facilitated by Viagogo itself arguably constituted an actionable wrong. The Supreme Court did however quote the requirement from the original Norwich Pharmacal case seemingly approvingly. This is arguably therefore still a requirement, although it is submitted that this factor may be superfluous, the more pertinent consideration being whether the third party is in possession of the information in question.
The international context
In Case C-275/06 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU  2 C.M.L.R. 465, the Court of Justice of the European Union held that European data protection laws neither required or prohibited disclosure in the form of Norwich Pharmacal orders. In particular, the absence of such disclosure orders inSpain was held not to be contrary to European law. That means that there is a significant potential litigation advantage to claimants in relevant cases to bring cases inEngland andWales over jurisdictions where such orders are not available.
This case shows that that advantage remains pretty much fully in force unabated by any implicit dilution by means of Article 8 of the Charter or any other provision.