Campaign Against Arms Trade v BAE Systems Plc

JurisdictionEngland & Wales
JudgeMr Justice King
Judgment Date26 February 2007
Neutral Citation[2007] EWHC 330 (QB)
Docket NumberCase No: IHQ07/0049
CourtQueen's Bench Division
Date26 February 2007
Campaign Against Arms Trade (an Unincorporated Association, Claiming by Its Authorised Officer, Ann Feltham)
Bae Systems Plc

[2007] EWHC 330 (QB)


Mr Justice King

Case No: IHQ07/0049



Miss Dinah Rose QC and Mr. Ben Jaffey (instructed by Leigh Day & Co) for the Applicant

Miss Clare Montgomery QC and Mr. Antony White QC (instructed by Allen & Overy LLP) for the Respondent

Hearing date: 2 nd February 2007

Mr Justice King

The Applicant is a long established unincorporated association engaged in research into and campaigning against the international arms trade. The Respondent is a well known major arms manufacturer based in this country. On any view they are in opposing camps in the arms trade world.

The Norwich Pharmacal Application


I have before me an application dated the 24 th of January 2007 seeking Norwich Pharmaca relief against the Respondent for disclosure pursuant to the principles established in Norwich Pharmacal Co v. Customs and Excise Commissioners [1974 AC 133] and developed in subsequent case law.

The Protective Costs Order granted by Underhill J.


Prior to the issue of this application the Applicant obtained an order for interim relief from Underhill J. dated the 24 th January 2007 made on a without notice application. The relief granted was in two parts. The first was for the preservation of documents. This has proved uncontroversial. The second was a protective costs order directed to the hearing of this present application and made having regard to the limited financial resources of the Applicant. Under its terms no order for costs of the application for the interim relief, or for the costs of the hearing on the return date, should be made that would require the Applicant to pay the Respondent, or the Respondent to pay the Applicant, more than the sum of £10,000.


This second aspect of the order has proved highly controversial. Although no application to vary or discharge the costs order has ever been made, the Respondent, in its written skeleton and orally before me, pursued the submission that the costs order was outside the jurisdiction of the court and should never have been made. The thrust of that submission was that the present application could not be characterised as proceedings brought to pursue a public interest but were private law proceedings “concerned with the Applicant's private concerns about confidentiality within its organisation” and as such fell outside the principles governing the grant of such a protective costs order established in R (Corner House Research) v. Secretary of State for Trade and Industry [2005] 1 WLR 2600, at 2625, para.74, in the context of public law proceedings. Nor it was said could the order come within the principles governing costs capping orders in the context of private law proceedings, exemplified in those laid down by Gage J. in Smart v. East Cheshire NHS Trust [2003] EWHC 2806 para. 22 (cited at page 86 of current White Book Civil Procedure volume 1). Underhill J. himself however at paragraph 32 of his judgment considered that he had jurisdiction to make the order he did, relying upon the Court of Appeal's decision in King v. Telegraph Group Ltd [2005] 1WLR 2282, describing the court's powers as regards cost-capping as “extremely wide.” He no doubt had in mind the principles set out in King at paras. 92 – 93.


I shall deal first with the Norwich Pharmacal application, leaving my consideration of the costs issue to the end of this judgment.

The Norwich Pharmacal Jurisdiction


Under the principles referred to, the court in exercise of its discretionary equitable jurisdiction has the power to order a person who has become involved or mixed up in some way in the wrongful acts of others, to assist the person wronged by providing information as to the identity of the wrongdoers. In the case of a wrongful leak of privileged or otherwise confidential information to an innocent third party, which is how this present application was originally presented, the court if it is mindful to grant the relief in principle, has a general discretion which must of course be exercised judicially, as to the manner in which the assistance should be rendered. It is for example not uncommon for the court to order that the appropriate person file an affidavit containing the relevant information. This is particularly the case where the original source materials leaked to the third party have been destroyed or mutilated but it is not confined to such a situation. All will depend upon the view of the court as to the sort of information in the possession of the Respondent likely to assist in the identifying of the wrongdoer. See for example the orders made in X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1991] 1 AC 1, HL, and in Ashworth Hospital Authority v. MGN Ltd. [2002] 1 WLR 2033, HL.

The Requirements for exercise of the Norwich Pharmacal Jurisdiction



The authorities establish that although the exercise of the discretion does require evidence of wrongdoing, there is no requirement that the respondent to the application should himself be an actual wrongdoer. This was reiterated by Lord Woolf CJ in Ashworth at 2039E:

The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person “…..” by giving any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. While therefore the exercise of the jurisdiction does require there should be wrongdoing, the wrongdoing is the wrongdoing “….” of the person whose identity the claimant is seeking to establish”.


The wrongdoing is not confined to tortious acts. It can extend to breach of contract or even criminal conduct. See Lord Woolf in Ashworth at 2041G-H; 2048E-F. Moreover, it is sufficient if the evidence establishes only an arguable case of such a wrong:

“A wrong must have been carried out or arguably carried out by an ultimate wrongdoer”, per Lightman J. in Mitsui & Co Ltd. v. Nexen Petroleum UK Ltd. [2005] EWHC 625 (Ch) at para 21(i).

The purpose of the application


Nor is it now necessary (if it ever was) that in order that disclosure be ordered, the Applicant intends to bring legal proceedings against the wrongdoer, provided some other legitimate purpose in seeking disclosure is identified. This was established in Ashworth itself where the applicant hospital authority intended to dismiss the source of the leak once identified from its employment. In that case the leak had been to the press and concerned the medical records of a notorious convicted murderer who was a secure patient in the Applicant's hospital (see Lord Woolf at 2045–6). In the course of his judgment Lord Woolf emphasised that Norwich Pharmacal relief was a flexible remedy capable of adaptation to new circumstances (p.2049F).

The threshold requirement: the Respondent to be more than a mere bystander


It remains a fundamental requirement to the exercise of this jurisdiction that the person against whom disclosure is ordered, is shown to have been more than a “mere bystander or witness”.


In Norwich Pharmacal itself their Lordships expressed the test to be applied in a number of different ways.


Lord Reid (at p.175B-C) spoke of a “very reasonable principle that if through no fault of his own a person gets mixed up (my emphasis) in the tortious acts of others so as to facilitate their wrongdoing (again my emphasis) 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.” The key phrase here in my judgment is that which describes the innocent third party as a “facilitator” of the wrong. The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered. Similarly, Lord Kilbrandon and Lord Cross focussed on the relationship between the respondent to the application and the wrongdoer (Lord Kilbrandon at p.203H; 204B; Lord Cross p.197C). This in my view is the context in which Lord Reid's earlier statement at p.174F, heavily relied on by the Respondent in this case, namely “It is not available against a person who has no other connection with the wrong than that he was a spectator or has some other document relating to it in his possession”, has to be interpreted.


Whether receipt of a confidential document wrongfully disclosed will in itself be sufficient “ involvement or participation in the wrong” (to use the test formulated by Viscount Dilhorne in Norwich Pharmacal when saying at 188C, “someone involved in the transaction is not a mere witness”, a test adopted by Lord Woolf in Ashworth at 2041H when saying “it is sufficient if “…” there was “involvement or participation”) must depend on the nature of the wrong itself and its purpose. There may in my judgment be circumstances where the mere receipt of a piece of information wrongfully sent, whether in documentary form or not, may be sufficient involvement for these purposes because that in itself facilitates the wrong. In X Ltd. the journalist Mr. Goodwin was required to deliver up his notes and disclose the source of the leaked document concerning the financial affairs of the plaintiff companies, albeit no article based on that information had yet been published. Clearly the purpose and plan of the wrongdoer in that case was to send the information to the newspaper so that it could be published. The very receipt of the leaked document by the newspaper's journalist facilitated the plan. Hence this court at least can see why...

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13 cases
2 books & journal articles
  • Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 15-4, October 2011
    • 1 October 2011
    ...[1997] 4 All ER 200; Carlton Film Distributors Ltd vVCI plc [2003] FSR 47.44 See, e.g., Campaign against Arms Trade vBAE Systems plc [2007] EWHC 330 (QB).45 Interbrew SA vFinancial Times [2002] EWCA Civ 274.46 Totalise plc vMotley Fool Ltd [2001] EWCA Civ 1897; Applause Store Productions Lt......
  • Subject Index
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 15-4, October 2011
    • 1 October 2011
    ...Crim 1451, [2009] 2All ER579 . . . . . . . . . . . . . . . . . . . . . . . . . . . .150Campaign against Arms Trade v BAE Systemsplc [2007]EWHC 330 (QB). . . . . . . . . . 346, 347Campbell vMGN Ltd [2004]UKHL 22 . . . . . . . 292Caridad v Metro-North Commuter Railroad 191F 3d283 (2d Cir1999)......

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