Here is something that is really obvious to litigators but not the general public:
Police forces and banks don’t understand disclosure and data protection legislation.
Every time a reasonable request is submitted for information for which our client is entitled, it seems that a standard template response is received.
(aka the song and dance we go through)
(1) We send a nice letter requesting disclosure. It is genuinely a pleasant letter as we want information rather than money.
(2) The bank or police place blanket reliance on the Data Protection Act.
(3) We thank them for their response, repeat the reasons for our request for information and then highlight Section 35 of the Data Protection Act. We ask them to revisit their decision.
(4) Instead of considering it in details, we receive a response saying they maintain their original refusal.
The difficulty with some of these is that CPR 31.17 cannot be used for non-party disclosure. That is when you have to look to making a Norwich Pharmacal order.
What’s a Norwich Pharmacal Order?
The easiest way to describe it is that when one entity is caught up in the wrongdoing of a situation, they are obliged to disclose the identity of the wrongdoer, if that person or entity cannot be identified through other means. You need not be the person who has committed the wrong, but you have the relevant information within your control.
The Order arose from an intellectual property case and remains good law. It is still used to this day on a regular basis. For example, the RFU (for you rugger buggers out there) used it recently in relation to dodgy ticket touts, and many music, film and pornography companies use them against internet providers to disclose details of website operators.
What’s the upside of these applications?
You can identify the correct defendant. From there you can bring your claim.
Another good point is it uses the Part 8 process which is much faster than Part 7. Try getting a CPR 31.17 application notice heard anytime soon!
What’s the downside?
In real terms, aside from satisfying the Court that your client meets the criteria, the matter of costs is a real difficulty.
You will have little difficulty recovering these from a bank. I recently took a well known high street bank for over £3k (100% of the costs schedule) without much effort.
The real sticking point is obtaining costs from the police. Their complaints about payments from the public purse normally see no order as to costs. This is very frustrating as it seems unfair and the police can be far more obstructive than private firms when it comes to these applications.
So why are you encouraging us to keep making these applications?
If they face a barrage of these then they will:
- take advice from counsel on how to deal with these and adopt a process or procedure;
- they will then be able to disclose the correct documents and only oppose the applications which deserve to be fought; and
- there is a chance that overall it will save costs because you do not need to make an application and go through the risk of not knowing if your costs will be recovered
(seriously, good luck recovering them against the police at your local county court).
If anybody else has experienced this (or the polar opposite) then please let me know: firstname.lastname@example.org.
Over and out.