Identifying an unknown wrongdoer through the irish courts
Introduction
A claim cannot be brought against a person whose identity is unknown. An injured person struck by an untraced vehicle, harmed by a product whose supplier cannot be identified, or defamed by an anonymous online account may know that a wrong has been done but not by whom. A Norwich Pharmacal order is the means by which the High Court compels a third party who holds the information to disclose it.
This guide explains what the order is, the conditions the Irish courts apply, and the circumstances in which it may assist a personal injury plaintiff.
The Law
The jurisdiction takes its name from the decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners in 1974, which held that a person who, through no fault of their own, has become mixed up in the wrongdoing of another so as to facilitate it, comes under a duty to assist the person wronged by giving full information and disclosing the identity of the wrongdoer. The Irish High Court has an inherent jurisdiction to make such orders, and the governing principles were restated by the Court of Appeal in Blythe v Commissioner of An Garda Síochána.
The applicant must establish a strong case that a wrong has been committed; suspicion is not enough. The respondent must hold the information sought, and the information must be necessary to enable the applicant to bring or continue proceedings, with no other reasonable means of obtaining it. The court weighs the applicant’s interest in access to justice against the interests of the respondent and of the person to be identified, including their privacy and data protection rights, and will make the order only where the balance favours disclosure. Because the person to be identified is not before the court, the applicant is under a duty of full and frank disclosure. Information obtained under the order may be used only for the purpose of the proceedings for which it was sought.
The order is distinct from the Motor Insurers’ Bureau of Ireland scheme, which compensates victims of unidentified drivers without the need to identify them, and from a data subject access request under the GDPR, which entitles a person to their own data but not to the identity of a third party.
Practical Steps
In personal injury practice the order arises in a limited number of situations. Where a workplace accident involves several contractors and the identity of the party responsible for the equipment or the system of work is unclear, an order against the principal contractor or site owner may identify the correct defendant. Where a defective product caused injury and the retailer will not identify the manufacturer or importer, an order may be sought, although section 2(3) of the Liability for Defective Products Act 1991 already deems a supplier who fails to identify the producer to be the producer. Where an injury arises from an online transaction or an anonymous act, an order against the platform or service provider may be the only route to a defendant.
Before applying, exhaust the alternatives. Write to the third party requesting the information and explaining why it is needed; many will disclose voluntarily on receipt of a solicitor’s letter, and the court will ask what was tried. Make a data access request where the information is the applicant’s own data. Check whether the MIBI scheme applies.
The application is made to the High Court on affidavit, and it is expensive. The applicant will usually be ordered to pay the respondent’s costs of compliance, since the respondent is innocent of the wrong, although those costs may be recovered from the wrongdoer once identified. The affidavit must set out the evidence of wrongdoing, the steps taken to identify the wrongdoer by other means, and the use to which the information will be put.
Act quickly. Records held by third parties, particularly electronic records, are retained for limited periods, and the two-year limitation period continues to run while the wrongdoer is unidentified.
Takeaway
A Norwich Pharmacal order is a powerful but exceptional remedy. It is available where a strong case of wrongdoing exists, the information is necessary and cannot otherwise be obtained, and the interests of justice favour disclosure. It is not a general investigative tool, and the courts guard against its use as one.
For an injured person who cannot identify the party responsible, the first steps are the simple ones: a letter, a data access request and a check on the statutory schemes. Where those fail, the order provides a route to a defendant, and with it a claim that would otherwise not exist.
Further information
This article was prepared for informational purposes only. For further advice, please email workclaim@crushell.ie or contact the offices of Crushell & Co Solicitors.
About Crushell & Co
Crushell & Co is a specialist firm advising on the application of law in the Irish workplace.
Our Dublin-based solicitors have particular expertise in workplace injury litigation, regularly acting on behalf of employees who have suffered injuries arising from unsafe systems of work, inadequate training, or failures in workplace safety procedures.
We understand that a workplace injury can have serious consequences for an individual’s health, livelihood, and financial security. We work closely with our clients to identify the root causes of workplace accidents, gather the necessary evidence, and advance strong, well-supported claims for compensation.
We are experienced in pursuing workplace injury claims through the Courts and achieving meaningful outcomes for injured workers, while providing clear and practical guidance at every stage of the process.
We translate complex legal issues into practical legal options, adapting our strategy to meet each client’s specific circumstances and objectives.
Connect: @CrushellLaw or www.crushell.ie
