Court Of Appeal Dismisses Application To Grant Norwich Pharmacal Order Concerning The Disclosure Of Mobile Phone Call Records & Location Data

On 24 November 2021, the English Court of Appeal handed down its decision in EUI Ltd v UK Vodaphone Ltd [2021] EWCA Civ 1771. The case focused on a Norwich Pharmacal Order application to disclose mobile phone call records and location data and whether the mobile phone provider was “mixed up in the tortious acts of others so as to facilitate their wrong-doing” or a mere witness.

EUI Ltd v UK Vodaphone Ltd

Background

In August 2018, a policy holder’s home was flooded and he made a claim under his home insurance policy (with EUI Ltd (the Claimant)) for ‘displacement’ costs. The insurance policy had a cap of £1,000 per month when the alternative accommodation was with relatives.

The insured took out a shorthold tenancy agreement for £1,850 a month (which the Claimant paid) and after a time, the Claimant became concerned about the genuineness of the tenancy. Their enquiries revealed the property was owned by the insured’s parents and there were inconsistencies in the information given about the whereabouts of his parents.

Proceedings

The Claimant believed there may be grounds for a claim against the policyholder and his mother in deceit and conspiracy. Therefore, they wanted to obtain information from UK Vodaphone Ltd (the Defendant – the policy holder’s mother’s mobile phone provider) which would show whether or not the insured’s parents were in fact staying in Milton Keynes, as alleged.

The information sought under the Norwich Pharmacal jurisdiction related to call records for the mobile phone and the cell site data showing the location of the phone during the period in question.

What is a Norwich Pharmacal Order?

A Norwich Pharmacal Order is an order against a party that requires them to disclose information that might assist a claimant in identifying a party suspected of wrongdoing. A defendant to such an application is usually not a party to the proceedings but has become “mixed up in the tortious acts of others so as to facilitate their wrong-doing” [Lord Reid, Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133].

The three conditions which must be satisfied before the Courts will grant such an Order are set out in Mitsui & Co Ld. v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch):

1. A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
2. There must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
3. The person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.

The power to grant such orders does not extend to mere witnesses.

Decision

The Court of Appeal agreed with the lower Court and refused the application because it did not consider the mobile phone provider to be ‘engaged in the wrong’ or more than just a mere witness. Lord Justice Baker at paragraph 18 of the Judgment when on to state: