English High Court grants Norwich Pharmacal order against law firm 'unwittingly' mixed up in wrongdoing

The English High Court has granted a Norwich Pharmacal order against a law firm unwittingly mixed up in wrongdoing. The ruling confirms that no privilege existed over the identity of a third party that provided documents to solicitors. 

The English High Court in Filatona Trading Limited and Oleg Deripaska v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] granted a rare Norwich Pharmacal order against a law firm, Quinn Emanuel, on the basis that it had been "unwittingly involved" in wrongdoing, rejecting the argument that it was a "mere witness". 

In doing so, the ruling confirmed that the identity of a party communicating with solicitors in relation to litigation would only be subject to litigation privilege if disclosure would inhibit candid discussion between lawyer and client. 

Relief sought 

A Norwich Pharmacal order compels a third party to disclose information or documents, and is often used by prospective claimants seeking to identify the correct defendant to a claim.

In order to obtain Norwich Pharmacal relief, an applicant must satisfy the test (as articulated in Collier v Bennett [2020]) that there is a good arguable case that a legally recognised wrong has been committed against the applicant; the respondent was mixed up in the wrongdoing so as to have facilitated it; the respondent is able (or is likely to be able) to provide the information or documents necessary to enable the wrongdoer to be pursued; and the order must be appropriate and proportionate in all the circumstances. 

Russian oligarchs 

Filatona concerned a hard fought arbitration between two Russian oligarchs – the Deripaska and Chernukhin parties. The Chernukhin parties successfully alleged unfair prejudice against the Deripaska parties in respect of a joint venture and obtained an order that the latter acquire their shares for US$95 million. 

The Chernukhin parties subsequently applied for the arbitral award to be set aside on the basis that the share purchase price was a gross undervaluation. They relied on a newly uncovered property development report that they alleged the Deripaska parties had failed to disclose in the arbitration. 

Known as the Glavstroy report, the document had been obtained by the Chernukhin parties' solicitors, Quinn Emmanual, through an anonymous intelligence consultancy. The Deripaska parties alleged the Glavstroy report to be a forgery and the Chernukhin parties subsequently discontinued the set-aside proceedings. The Deripaska parties then sought a Norwich Pharmical order against Quinn Emanuel to compel it to identify the consultancy firm. 

Litigation privilege 

The court determined that in this case no privilege attached to the identity of those communicating with the defendant Quinn Emanuel. The law firm relied on case law to say that privilege could be asserted over both the identity of and the information given by potential witnesses in litigation. 

However, the judge disagreed concluding that litigation and legal advice privilege generally cover the content of communications but not facts or information such as a person's identity. The judge explained that the mere identity of a person communicating with solicitors would only be protected by litigation privilege where its disclosure would inhibit candid discussion between lawyer and client. 

Mixed up in wrongdoing 

Quinn Emanuel argued that it was a "mere witness" and had no involvement in any potential wrongdoing. The judge disagreed, and found that QE was "critical at every stage of the life and propagation of the report". It had, for example, sent the report for translation and conducted a "detailed analysis" of it. In passing the report on for its use in litigation, Quinn Emanuel gave it the "imprimatur of authenticity" and it was ultimately "unwittingly involved" in the wrongdoing. 

Ultimate wrongdoer 

The decision reaffirmed that it is no impediment to Norwich Pharmacal relief being granted that the respondent does not know the identity of the ultimate wrongdoer. In Filatona, the ultimate wrongdoer was not the consultancy but the person who provided them with the report. It was sufficient that the respondent could identify a person who could, in turn, identify the wrongdoer (if necessary under a subsequent Norwich Pharmacal order). 

It also confirmed that the applicant need not intend to pursue formal legal proceedings against the ultimate wrongdoer; disciplinary redress against an employee, for example, would suffice. 

Osborne Clarke comment 

The decision is a reminder that, although rare, firms of solicitors may be ordered to reveal the identity of those who communicate with them, even in the context of litigation. It suggests that it may be difficult to assert privilege to repel Norwich Pharmacal applications in particular, where the substance of any communications is not the subject of the order sought. 

It is also a reminder to prospective claimants that disclosure from law firms may, in limited circumstances, offer a viable path to the identity of an alleged wrongdoer.