(1) Introduction
[Addressing the Court]
“My Lady, may it please the Court, I appear on behalf of the Claimant Clinton
Distributors PLC.
This is an application on behalf of the Claimant (‘C’), for the court to make a
Norwich Pharmacal Order against the Defendant (‘D’) to disclose the identity of the
company whose men moved and restacked the water pursuant to CPR 31.18.
The Claimant asserts that they want to preserve customer confidentiality hence unable
to assist the D. The Defendant is seeking a Norwich Pharmacal order in order for D to
disclose the identity of the proper defendant.
[Documents]
“My lady, before I proceed with my submissions, may I confirm whether you have
received the hearing bundle, My lady, have you had the opportunity to read the court
bundle
may I confirm whether you have received my skeleton argument and that of my
learned friend?”
[If the My lady responds affirmatively]
“My lady, in support of the application, I will refer the evidence documents which can be
found (para 2 of my skeleton)
a) Witness statement of Peter Maurice Courtney dated 2 January 2025 (‘WS/PMC’)
dated 2 January 2025 (page 4-8 of the bundle)
b) Witness statement of Ravi Sitlani (‘WS/RS’) dated 2 January 2025 (page 16-18 of the
bundle)
c) Exhibit PMC1: An image of a standard trade black plastic crates used (page 9-10 of
the bundle)
d) Exhibit PMC2: Email from Mr Jack Howard to Mr Courtney dated 13 July 2024
e) Exhibit PMC3: Letter from Dr Marion Elkington to Mr Courtney dated 10 September
2024
2. Background Facts:
My Lady, are you familiar with the background facts or would like a summary
[If the Your honuor asks for a summary]
On April 1, 2024, the Claimant (C) entered into a contract with Northern Ireland Tourist to
supply 350,000 litres of bottled spring water by July 7, 2024. To fulfill this, C contracted
Deep Source Ltd on April 22, 2024, to supply the water in specific packaging, which arrived
on June 30, 2024, in crates. Mr. Ravi Sitlani and his assistant, Mr. Jim Butler, began stacking
the crates on the wharf, ensuring a safe 4-high stacking to prevent collapse. However, on July
6, 2024, C was informed that the crates had collapsed, resulting in broken bottles and water
flooding the wharf. Only one stack remained intact, and it was discovered that someone had
restacked the crates to six high, which led to the collapse.
C seeks to recover their losses from the individual responsible for restacking the crates but is
unable to identify the person, as the D has refused to reveal their identity due to customer
confidentiality and security concerns.
Brief summary can be found paragraph 3, para 2 of the skeleton argument and further
detailed in the court bundle.
3) issues
My Lady the key issue for your determination today is Whether there is a wrong done
by an ultimate wrongdoer for a Norwich Pharmacal Order to be granted so that the D
discloses the identity of the wrongdoers.
The test for granting such an order is outlined in Norwich Pharmacal Co v Customs
and Excise Commissioners and I will address each condition of the test shortly. The
C submits that the D has fulfilled all the conditions.”
“My lady, I will address 3 main submissions in support of our dismissal to the
injunction(which can be found at page 4 para 13 of the skeleton argument)
1. First, whether a wrong have been carried out by an ultimate wrongdoer
2. Second, whether there is a need for an order to enable action to be brought against the
ultimate wrongdoer
3. Third, Whether the D be mixed up in so as to have facilitated the wrongdoing and be
able or likely to be able to provide the information necessary to enable the wrongdoer
to be sued
Submission 1: Whether a wrong have been carried out by an ultimate wrongdoer
[Signpost
“My lady, I now turn to my first submission, which may be found at page 4, paragraph 15 of
my skeleton argument. The Claimant submits that a wrong have been carried out by an
ultimate wrongdoer
a) As stated in in Orb v Fiddler (2016) EWHC 361 (Comm) at 84, a ‘wrong’ can be a
crime, tort, breach of contract, equitable wrong or contempt of court, which is capable
of being identified in general terms
b) An applicant does not need to prove the wrong but only show that there is a good
arguable case that a wrong has been done,
c) (WS/RS, page 18, para 9-10) C’s crates were restacked six high which is against
industry practice in the absence of C’s employees causing it to collapse
d) (WS/PMC(PETER MAURICE COURTNEY), page 6, para 7-8)The defendant’s customer had
restacked the C’s consignment of water not according to proper industry practice
without the permission and knowledge of C.
e) (WS/RS, page 17, para 7) C is legally entitled to stack their crates at Southampton
Docks for the period they have paid for despite it arriving earlier than expected
because C had paid for a longer storage period, Therefore, the storage space rightfully
belongs to C when D’s customers restacked C’s crates.
f) D’s customer had committed the act of trespass to the C’s crates.
g) (Exhibit PMC3, page 13-14) D’s customers stacking it six high has caused it to
collapse due to the high temperature at the docks and pressure. This is supported by
an engineer’s letter of opinion, Dr Elkington.
h) C has suffered loss due to the defendant’s customer trespass which gives
C a good arguable case. Hence, a wrong has been committed.
Submission 2:
“My lady, I will now turn to my second submission, which may be found at page 5, paragraph
16 of my skeleton argument. The Defendant submits that there is a need for an order to
enable action to be brought against the ultimate wrongdoer
[Make the Point]
Where the information sought can be obtained via other practicable means, the court
will not grant Norwich Pharmacal order as shown in Mitsui & Co Ltd v Nexen
Petroleum UK Ltd [2005] EWHC 625.
The C’s case is different as the D is not a subsidiary and lacks the corporate structure
to identify ultimate wrongdoer without a compelling disclosure.
(WS/PMS, page 6, para 7-8)It is just and convenient to grant the Norwich Pharmacal
Order to identify the proper defendant since the D is not the one who stacked the
crates six high causing it to collapse. Hence, D is not the ultimate wrongdoer.
(WS, PMC, page 7, para 11)D’s customer are the ones who restacked the crates six
high, being the ultimate wrongdoer by causing C to suffer loss.
C has no other option to find the identity of the ultimate wrongdoer that is responsible
for C’s significant losses. Hence, Norwich Pharmacal order is the only way for D to
disclose the identity of the ultimate wrongdoer to C, making it necessary for such an
order to be granted.
(WS, PMC, page 7, para 11)C has suffered significant loss which are, the loss of
contract price (£576,000), the cost of damaged cement to be replaced (£21,000) and
cost to clean the wharf surface.
My lady, I submit that Norwich Pharmacal order is the only way for D to disclose the
identity of the ultimate wrongdoer, making it necessary for such an order to be
granted.
[Mini-conclusion]
Therefore, My Lady, I respectfully submit that in the absence of alternative means to identify
the ultimate wrongdoer, the Claimant has no other recourse but to seek a Norwich Pharmacal
Order. The Defendant holds the necessary information to disclose the identity of the
individual responsible for the loss suffered by the Claimant. Given the significant losses
incurred and the lack of a proper defendant identified, it is just and convenient for such an
order to be granted to ensure justice is serve.
Submission 3: Damages as an Adequate Remedy
[Signpost]
“My lady, I will now turn to my final submission which can be found at page 6, para 17 of
my skeleton which is D was so mixed up in so as to have facilitated the wrongdoing and be
able or likely to be able to provide the information necessary to enable the wrongdoer to be
sued [Make the Point]
a) D must be more than a “mere witness” and must have been involved or assisted the
wrongdoing. (CPR31.18.6)
b) Someone who tries to prevent the wrongdoing could be “involved” in the wrongdoing
even if its conduct is not wrong. Various Claimants v News Group Newspapers Ltd
[2014] 2 WLR 756 at [53]).
c) (WS/RS, page 17, para 5) D has inspectors at the Southampton docks, therefore would
be aware if anything was moved at the docks and in charge of overseeing storage of
incoming cargo on the wharf. The D was connected to the wrongdoing as D facilitated
the restacking of C’s crates without the C’s permission.
d) (WS/RS, page 17, para 5) The D knew their other customer needed space for fruit
cargo, as they are authorised to permit storage of goods on the wharf. (WS/PMC, page
7, para 14)D was the facilitator of goods as D had made space for another customer’s
cargo on the wharf despite knowing C had paid for the storage space.
e) (Exhibit PMC2, page11-12) D has knowledge of the identity of the wrongdoer as
shown in his letter but refused to disclose this information to the C to protect D’s
customer confidentiality and security.
f) (WS/PMC, page 7, para 14)C had no other practical means of obtaining the name and
contact details of the company whose employees restacked C’s crates.
[Mini-conclusion]
Therefore, My Lady, I respectfully submit that the Defendant is more than a mere witness and
was directly involved in the wrongdoing. As a facilitator of the restacking of crates without
the Claimant's consent, the Defendant had the knowledge and control over the storage of
goods on the wharf. Despite this, the Defendant has refused to disclose the identity of the
wrongdoer, leaving the Claimant without other means of identifying the responsible party.
Given these circumstances, it is just and necessary for the Defendant to provide the requested
information.
(3) Conclusion
[State the Order Sought]
“My Lady, in conclusion, I respectfully submit that the Claimant has satisfied all the
necessary criteria for the granting of a Norwich Pharmacal Order.
The Defendant holds the essential information required to identify the ultimate wrongdoer,
and without such an order, the Claimant will not be able to pursue the party responsible for
the losses incurred.
Therefore, I respectfully request that the Court grants the Norwich Pharmacal Order
compelling the Defendant to disclose the identity of the wrongdoer.”
**[Back-Up Order]**
“Alternatively, should the Court have any concerns, the Defendant would be open to a more
limited order, such as the provision of additional details or specific information that would
assist the Claimant in their pursuit of the wrongdoer, but we submit that the full Norwich
Pharmacal Order is the necessary remedy in this case.”
**[Reiterate Best Points]**
“To summarize, My Lady, the Claimant has established a good arguable case that a wrong has
been committed by the ultimate wrongdoer, as evidenced by the improper restacking of the
crates, which resulted in the collapse and subsequent losses.
Furthermore, the Claimant has no other practical means of obtaining the identity of the
responsible party, and the Defendant’s role in facilitating the wrongful act makes it the only
party able to provide the necessary information.
Given the significant losses incurred by the Claimant, including the loss of contract value and
the costs to replace damaged goods, it is just and convenient to grant the Norwich Pharmacal
Order to ensure the Claimant can take further action against the ultimate wrongdoer.
Unless I can assist the Court further, those are my submissions.”