[2020] EWHC 3815 (QB)
Case No: G90MA339
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
QUEEN'S BENCH DIVISION
Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Monday, 30 November 2020
HIS HONOUR JUDGE Sephton QC
(Sitting as a Judge of the High Court)
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Mr P Higgins appeared on behalf of the Claimant
The Defendant did not attend and was not represented
JUDGMENT
(APPROVED)
21. JUDGE Sephton: This is an application by EUI Limited for disclosure under the jurisdiction of the court under Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133 against UK Vodafone Limited.
2. The underlying problem is that there is an insurance claim made against the claimant by Mr and Mrs Mistry, they alleging that they were kept out of their home for a significant period of time as a result of a flood at their house. They made a significant claim in respect of expenses that they said that they incurred and the claimant wishes to obtain evidence in the way mobile phone communications data which indicates what telephone calls were made by Mrs Mistry and where her telephone was at the relevant time. That will demonstrate, so they hope, that what the claimants, Mr and Mrs Mistry, were telling the claimants was incorrect, was lies and that consequently their claim against the claimant must fail.
3. The Part 8 proceedings have been served upon Vodafone, who have chosen not to appear. They are not conceding the relief which is sought but they are not opposing it either.
4. At a hearing last Friday I engaged with Mr Higgins who appears for the claimant in a discussion about whether I had jurisdiction to make the order which is sought, my concern being that the defendants in this case were not sufficiently involved in the wrongdoing to justify the making of an order. The claimant itself drew my attention to Mitsui & Co Ltd v Nexen Petroleum Limited [2005] EWHC 625 (Ch) in which at paragraph 21 Lightman said this:
“The three conditions to be satisfied for the court to exercise the power to order Norwich Pharmacal relief are:
i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be 3able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.”
5. It was (iii) that concerned me. Mr Higgins has diligently found a decision of Mann J, Various Claimants v News Group Newspapers [2013] EWHC 2119. In that case Mann J considered the authorities and in particular the requirement as to whether the defendant to an application such as this had to have been involved in the wrongdoing or the extent to which they had to be involved in order for relief against them to be obtained.
6. Mann J says this at paragraph 52:
“If a participation or facilitation test were the sole test, incapable of expansion, Miss Rose [who appeared for the defendants] would be correct. However, I do not think that it is the sole test.”
He then explains about the previous cases. He goes on to say:
“In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things – the mere witness on the one hand, and the person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness. That question has not arisen in the cases in terms, but since the real question is the scope of the mere witness rule it is relevant to consider that particular question. It has been made to arise in the present case because of its unusual facts.”
7. He then went on to consider “the relevant question”:
“… which is not whether the MPS have participated in, or facilitated, or been involved in the actual wrongdoing in the case. It is whether the MPS is a mere witness (or metaphorical bystander) or whether its engagement with the wrong is such as to make it more than a mere witness and therefore susceptible 4to the court's jurisdiction to order Norwich Pharmacal disclosure.”
8. If I accept that as a proper expression of the law, I have to consider how it is said that in this case Vodafone's actions take them beyond the role of being a mere witness. Mr Higgins submits that when people used traditional landlines, you cannot conduct affairs telephonically save at an identifiable address. You cannot live at an address and simultaneous place telephone calls from that address unless being actually present. Mobile telephony has enabled people to say that their activity is occurring in one location when it is actually occurring somewhere else and that, he submits, is a sufficient distinction from being a mere witness to justify the exercise of the discretion.
9. I find that an ingenious argument but I am afraid I am not persuaded by it. The difficulty with it is that the provision of mobile telephony is not something that is exclusive to UK Vodafone Limited or indeed to telephone providers generally. It is a joint effort between providers of telephone equipment and the people who provide the infrastructure for that equipment. The same argument as Mr Higgins uses could be applied to any ISP on the internet because using the internet it is quite possible to purport to be making a request for a delivery, for example, at one place where in fact you are at a different place. We are talking here about a means of communication and to suggest that somebody who provides the means of communication is so wrapped up in the matter as to have gone beyond the role of mere witness, in my judgment, is to strain language.
10. For that reason I am not persuaded that this is an application which can succeed.
11. I emphasise that my concern is the greater because one is dealing here with Mrs Mistry's Article 8 right and, although there is a strong argument to be had that her Article 8 rights should not be suborned to the claimant's rights to avoid fraud, this is a case in which the bootstraps, as it were, have to be used. The claimant says that it can only prove fraud if they have the telephone details and yet the telephone details may prove to be entirely benign. However they may contain, as I discussed in 5argument earlier on, matters which are private to Mrs Mistry which may be embarrassing to her.
12. I do not decide the case on the basis of a refusal to exercise my discretion under Article 8. The basis for my decision is that I do not have jurisdiction on the basis that Vodafone in this case, in my judgment, are mere witnesses and they cannot be distinguished in the way that is suggested by Mann J in the News Group case.
6This transcript has been approved by the Judge