The BVI Commercial Court has recently ruled that applications for Norwich Pharmacal relief should, as a general rule, be made on notice to the respondent subsequent to the granting of any seal and gagging order made to preserve the confidentiality of such an application. This follows the Practice Notice (No.4 of 2016 in the Commercial Division) issued in August 2016 which provides that for any matter that is to be sealed the applicant should first make the application for the seal (and gag, if necessary) and then subsequently make the substantive application if and when the seal has been granted.
In a short judgment given in AAA v TTT, the Honourable Justice Jack was not persuaded that he should grant both a seal and gagging order and a Norwich Pharmacal order at the same ex parte hearing, despite recognising that Norwich Pharmacal relief was required on an urgent basis.
Despite Practice Notice No. 4 of 2016, there has been a practice in the BVI to seek Norwich Pharmacal orders at the initial ex parte hearing, alongside the application for a seal and gagging order. Such an approach was justified on the basis that the respondent would be given an opportunity to contest the grant of the Norwich Pharmacal order before complying with the disclosure obligations. Unsurprisingly, it is difficult to identify examples of this practice because of the confidential nature of the applications, but such an approach was adopted by the BVI Commercial Court in P v Y Ltd (A Registered Agent), which is no longer under seal.
In AAA v TTT, Justice Jack said that such an approach should only be adopted by the court where there were “special circumstances” to justify it. He took into account when coming to this decision the fact that respondents should be given an opportunity before any order is made to contest not only the making of the Norwich Pharmacal order but also the scope of the order sought. He noted that the practice of granting such orders before the respondent had an opportunity to express any concerns as to the order sought immediately put the respondent on the back foot.
It remains to be seen what “special circumstances” might justify the granting of a Norwich Pharmacal order ex parte. In AAA v TTT it was not enough that the application was recognised as urgent by Jack J because he was able to abridge time for the inter partes hearing, which was listed 3 days later. However, it appears the court has not completely closed the door to granting ex parte Norwich Pharmacal orders if satisfied that the application cannot be delayed by even a few additional days.