Facts
The decision at first instance appeared in the August 2001
edition of MCLR ([2001] Masons CLR 87). This is the appeal
brought by the Second Defendant against the decision of Owen J.,
who ordered the Defendants to pay the Claimant's costs in a
'Norwich Pharmacal' application. The subject matter
of this appeal was considered in the commentary to the previous
MCLR article and therefore no further commentary is provided
here.
Briefly, the First and Second Defendants provided a bulletin
board web site service. A user of the service, 'Z Dust', made
a number of postings which were allegedly defamatory against the
Claimant. The Claimant requested disclosure of Z Dust's
identity from the Defendants. The Defendants refused on the
basis that disclosure would breach the Data Protection Act 1998
(the '1998 Act'). As a consequence the Claimant brought a
Norwich Pharmacal application against the Defendants
seeking a Court Order that they disclose Z Dust's identity and
provide documents relating to the same.
Owen J. made an order for disclosure of Z Dust's identity and
that the Defendants pay the costs of the application. This
costs order was made on the basis that although the Defendants had
to carry out the balancing exercise as to whether or not to
disclose the identity, in this case there was only one answer to
that balancing exercise, namely that they should have complied with
the requests made by the Claimant. The costs part of the
order formed the subject of the appeal.
Judgment
Aldous LJ held that the Court did have a discretion as to the
order for costs in Norwich Pharmacal applications, but
that such applications are not ordinary adversarial proceedings (on
the basis that the defendants are not the wrong doers and have
become mixed up in tortious acts through no conduct of their
own). In these situations it is for the applicant to satisfy
the Court that the order for disclosure should be made, not for the
defendant to take a view which could be wrong.
Section 35 of the 1998 Act permits disclosure of personal data
where it is necessary for the purposes of establishing, exercising
or defending legal rights. However paragraph 6 of Schedule 2
to the 1998 Act states:
"(1) The processing is necessary for
the purposes of legitimate interests pursued by the data controller
or by the third party or parties to whom the data are disclosed,
except where the processing is unwarranted in any particular case
by reason of prejudice to the rights and freedoms or legitimate
interests of the data subject."
Aldous LJ considered it manifest from paragraph 6 that no order
might be made for disclosure of a data subject's identity, whether
under Norwich Pharmacal doctrine or otherwise, unless the
Court had first considered whether the disclosure was warranted,
having regard to the rights and freedoms or the legitimate
interests of the data subject. Furthermore and particularly
since the coming into force on 2 October 2000 of the Human Rights
Act 1998, the Court must be careful not to make an order which
unjustifiably invades the right of an individual to respect for his
private life, especially when that individual is not before the
Court.
The Court found that a defendant to a Norwich Pharmacal
application should not make a disclosure of a person's identity
merely on the basis of legal advice he has taken as to the likely
outcome of the application. Many factors are relevant as to
whether disclosure is or is not ordered, and a defendant may easily
come to the wrong view.
In general Norwich Pharmacal applications are akin to
proceedings for pre-action disclosure. The Court, when
considering its order as to costs, after a successful Norwich
Pharmacal application, should consider all the
circumstances. However in a normal case the applicant should
be ordered to pay the costs of the party making the disclosure
including the costs of making the disclosure. Aldous LJ
acknowledged that there may be cases where the circumstances
required a different order but not in cases where:
- the party required to make the disclosure had a genuine doubt
that the person seeking the disclosure was entitled to it;
- the party was under an appropriate legal obligation not to
reveal the information, or where the legal position was not clear,
or the party had reasonable doubt as to the obligations (in the
current situation, the terms and conditions of the relationship
between the Defendants and Z Dust prevented the Defendants
disclosing his identity);
- the party could be subject to proceedings if disclosure was
voluntary;
- the party would or might suffer damage by voluntarily giving
the disclosure; or
- the disclosure would or might infringe a
legitimate interest of another.
Consequently, Aldous LJ found that Owen J. was wrong in making
an order for costs against the Second Defendant in the
circumstances, the appeal was upheld and the Second Defendant was
entitled to recover its costs.
