Anna FitzHerbert examines a freezing effect on disclosure
Evidence gathering can be fraught with challenges, particularly when it is held by an anonymous source. This issue can arise in all contexts, from civil claims to criminal proceedings and regulatory inquiries. Depending on the type of action anticipated or under way, various methods to gain access to information exist, including the powerful and intrusive Norwich Pharmacal (NP) order (named after Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] 2 All ER 943).
NP enables applicants who meet its criteria to obtain documents or information from third parties somehow innocently caught up in wrongdoing. As reaffirmed in R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin)(Mohamed), the jurisdiction is flexible and open. Importantly, Mohamed regarded certain High Court cases in the early 2000s as having erroneously pushed NP onto a wrong path where relief lurked behind artificial barriers. Mohamed sought to remove those barriers, in particular by restoring the threshold of when relief is “necessary” to its traditional, more attainable level.
Mohamed’s impact may,
