Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 13 October 2015 |
| Neutral Citation | [2015] EWHC 2874 (Ch) |
| Date | 13 October 2015 |
| Docket Number | Case No: HC-2015-003874 |
| Court | Chancery Division |
[2015] EWHC 2874 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Matthews
Case No: HC-2015-003874
By notice in Form N244 under CPR Part 23 dated 4 September 2015, but sent to and issued by the Court on 7 September 2015, Towergate Underwriting Group Ltd ("the Applicant") applied to the Court for (i) an order under CPR 31.16 (pre-action disclosure), and also for (ii) a Norwich Pharmacal order against Albaco Insurance Brokers Ltd ("the Respondent"). There were no existing proceedings within which the application was made. In the notice, the Applicant sought a hearing for both parts of the application estimated at 4 hours' duration. The application was supported by a witness statement from Andrew Ronald Bedford, dated 4 September 2015, with one exhibit. I was asked to and, after consideration of the papers, did in fact give permission for the application under CPR r 31.16 to be listed for four hours. In an email from the Court dated 16 September 2015, the Applicant was informed that I gave that permission so long as it was confined to the rule 31.16 application. However, the Applicant was also told that if it wished to apply in addition for a Norwich Pharmacal order against the Respondent, I had decided that a claim form (and not just a Part 23 application notice) would need to be issued for that purpose.
By a letter addressed to me dated 28 September 2015, DLA Piper UK LLP, the solicitors for the Applicant have queried my decision, expressed in the email of 16 September, arguing (in summary) that in all the circumstances the application for a Norwich Pharmacal order could be made by Part 23 application notice, and asking me to revisit my decision that the Applicant should issue a claim form for that relief. I have accordingly revisited the question, once more on the papers, without a hearing. Having done so, I have decided that the most appropriate way to deal with this is to set out my reasoning formally in this written decision. This will facilitate any appeal which may be sought to be made from my decision.
In my original decision communicated to the Applicant in the email of 16 September, I referred to the decision of Mr Justice Birss in Santander Bank plc v National Westminster Bank [2014] EWHC 2626 (Ch). There the learned judge said:
"51. First, these applications have been brought under Part 23 by using an application notice (form N244). This may well have contributed to the difficulties the court administration has encountered in trying to find the other outstanding Santander applications. In Norwich Pharmacal itself the claim for relief was commenced by originating summons. In Golden Eye the claim was commenced under the Part 8 procedure. When a Norwich Pharmacal order is sought in a complex case some form of originating process ought normally to be used. The White Book paragraph 31.18.11 notes that the application may be brought under CPR Part 7 or Part 8. On the other hand, as Santander rightly pointed out, paragraph 4.2 of the Chancery Guide provides that although such applications may be made by Part 7 and Part 8 claims, if the application is or is thought likely to be uncontested the court may entertain an application under Part 23 supported by evidence.
52. In these cases the beneficiary bank does not consent but does not oppose the applications and so the application is unlikely to be contested. That is why Santander has used the Part 23 procedure up to now. In doing so it acted properly however an unforeseen consequence of that approach has been that the applications are not readily identifiable once they have been made. With the benefit of hindsight, in future an applicant embarking on an exercise of this kind would be well advised to bring its first application(s) as claims under Part 7 or Part 8 as appropriate even if they are likely to be uncontested so that issues relating to them can be identified early and they can be managed appropriately."
The Applicant says that this decision can be distinguished from the present case, for (in substance) three reasons. First, that case concerned some 85 individual but related applications, with many more to follow. Thus the Court struggled to keep track of the applications. Originating process would have assisted in doing so. But the present is a single application for a Norwich Pharmacal order. Hence (it is said) there is no need for originating proceedings to allow the application to be identified and managed properly. Second, in the present case the Applicant seeks the information in question in order to explore whether the matter might be resolved without the need to issue "formal proceedings" (which I take to mean to substantive proceedings against the ultimate defendant(s) who may have caused the wrong suspected to have been committed). This is said to "commit both parties to incurring the time and costs of litigating this matter". Accordingly, it is submitted that issuing such proceedings at this stage would be "premature and disproportionate". Thirdly, the application is said to be unlikely to be contested factually. Hence (it is further said) an application under Part 23 is appropriate.
I take these three points in turn. First, I accept that the Santander case involved many different applications, which in itself rendered the management of those applications difficult. But I do not accept that this distinction means that the law is different when there is only one application. I deal with this aspect further below.
Second, 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, which the Applicant is already making. Indeed, an order cannot be made under that rule unless the Court is satisfied, amongst other things, that the advance disclosure would be desirable in order to dispose fairly of the anticipated proceedings, or to assist the dispute to be resolved without proceedings, or to save costs (see CPR rule 31.16(3)(d)). In any event it is not clear to me how on the evidence put forward in the present case a Norwich Pharmacal order would add anything to an order under CPR rule 31.16. Indeed, there must be a question as to whether a Norwich Pharmacal order can or should be made at all in circumstances where the applicant avers (as in this case the Applicant does) that, if substantive proceedings were started, the Respondent would be a party and would be obliged to give disclosure in the ordinary way of the very documents sought in the application.
Thirdly, the fact that the application may not be contested does not even begin to address the problems inherent in making this application under CPR Part 23. If that is not the right procedure under the rules, the fact that in the particular circumstances of the case it may not be contested is, in my view, irrelevant. The rules are as they are because the legislator has decided that that is the right way procedurally to deal with the questions which arise. This matters particularly nowadays, because of international obligations undertaken by the UK, such as those under the ECHR. In any event, the present case is different from the decision of Mr Justice Birss, precisely because it is not yet known whether, once the proceedings are served, the respondent will consent to the Norwich Pharmacal order or not. Indeed, to judge from the allegations made against the Respondent, and the correspondence exhibited in the evidence, I consider that it is very doubtful that it will so consent.
I start from the most basic proposition. Subject to any statutory exceptions that there may be ( eg CPR rule 19.8A), and to cases of intended actions against a person (see paragraph 24 below), if the Court is to make an effective order against someone, proceedings must first be started against that person, or that person must be joined into existing proceedings.
When the Norwich Pharmacal case was decided, the English procedural system was that governed by the RSC in the High Court and the CCR in the county courts. The relevant rule in the High Court was that in RSC Order 5 rule 1:
"Subject to the provisions of any Act and of these rules, civil proceedings in the High Court may be begun by writ, originating summons, originating motion, or petition".
All of these methods were forms of originating process, that is, means of starting civil proceedings. Each had their particular rules, to be found somewhere in the RSC.
By way of example, where a claim was made for pre-action discovery (as it was then called) under the Supreme Court Act (now the Senior Courts Act) 1981, s 33(2), RSC Order 24 rule 7A (1) required that this be made by originating summons. There was no existing action in which the application could be made, so a new one was started. (It was different, for instance, if there was an application for third-party discovery in an existing action, when it could be made by summons in that action: RSC Order 24 rule 7A(2).) Similarly, and as Mr Justice Birss himself noted, the Norwich Pharmacal case itself was one begun by originating summons. That form of originating process was no doubt chosen because there was expected to be no serious dispute of fact: see the Supreme Court Practice 1999, 24/2/2.
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