Occasionally, a party finds itself in a situation where it has been wronged by an anonymous third party.  Most frequently, (but not exclusively) this happens in defamation and harassment cases.

In such circumstances, a potential claimant may require assistance in discovering the identity of the potential defendant.

There are different reasons why a potential defendant would be unknown:

  • Where the potential defendant is using domain proxy services. Proxy services prevent a party’s identity and contact details from appearing in the public WHOIS domain lookup database. The proxy service becomes the registered name holder and it is their identity and contact information displayed in the database not the party who controls the domain.
  • Anonymous social media posts.
  • Anonymous correspondence sent to a potential claimant.
  • Hidden bank accounts.
  • An organisation, such as the DVLA, may hold information about the registered keeper of a vehicle which is not available to the public.

There are two options for potential claimants in this situation:

  1. Make an application for non-party disclosure under CPR 31.17; or
  2. Make an application for a Norwich Pharmacal Order.

So, which is the appropriate application to make?

Non-party disclosure

Non-party disclosure is dealt with under CPR 31.17.

CPR 31.17 can be used to obtain documents from a party who is not involved in the proceedings.

For an application to be made under CPR 31.17, proceedings must have been commenced.

The court will only order disclosure where the documents sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings and disclosure is necessary in order to dispose fairly of the claim or to save costs (CPR 31.17(3)).

An order made under CPR 31.17 must:

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(CPR 31.17(4))

In the case of Kerner v WX & YZ [2015] EWHC 1247 (QB) the court granted an application seeking the disclosure and production of documents which would identify an unknown party. It was stated that it would be inappropriate to construe CPR 31.17 in a narrow and literal way as to not extend to the question of the identity of an unknown party, to do so would tend to obstruct or hinder the fair disposal of litigation.

The court in Kerner was mindful of protecting the Article 8 human rights of a person whose identity would be disclosed pursuant to an order for non-party disclosure. Warby J stated that the court can exercise its discretion so as not to grant such a disclosure order where any such disclosure would represent an ‘unnecessary and disproportionate intrusion into personal privacy, or should not be ordered for some other reason’.

If a request is made under CPR 31.17 it should be framed as an application for disclosure of documents.

In Kerner, the applicant was permitted to modify their application which sought information, into an application for disclosure of documents identifying the relevant person.

Norwich Pharmacal Orders

In some circumstances a prospective claimant will not be able to request documents under CPR 31.17 non-party disclosure as there are no active proceedings.

An example would be where a prospective claimant does not have the name of a prospective defendant.  In this case, they will be unable to issue proceedings.

In such circumstances, the Norwich Pharmacal jurisdiction can assist. In addition, a Norwich Pharmacal Order (NPO) can require a respondent to supply the applicant with information rather than just documents, which an order under CPR 31.17 cannot.

In Collier v Bennett [2020] EWHC 1884 (QB) paragraph 68 of the judgment states “One of the main purposes of the Norwich Pharmacal application was obtaining the identity of [the wrongdoer] by way of a requirement that [the respondent] simply answer that question. The PAD application cannot obtain answers to questions but seeks disclosure of documents.”

We would suggest that this paragraph implies that CPR 31.17 cannot be used to obtain information, only documents. The Norwich Pharmacal jurisdiction should be utilised to request answers to questions/ information from a party who is not involved in the proceedings.

In summary:

  • If there are active proceedings, CPR 31.17 can be used to obtain documents from a party who is not a party to the proceedings.
  • The Norwich Pharmacal jurisdiction can be used to request answers to questions/ information, as well as documentation, even if there are no active proceedings.

If you have any questions regarding seeking the identity of an unknown potential defendant to a matter, please do not hesitate to contact a member of our specialist Commercial Litigation team.