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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Pharmacy2u Ltd v The National Pharmacy Association [2018] EWHC 3408 (Ch) (14 December 2018) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2018/3408.html Cite as: [2018] EWHC 3408 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
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Applicant |
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- and - |
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THE NATIONAL PHARMACY ASSOCIATION |
Respondent |
____________________
Christopher Cook (instructed by Brabners LLP) for the Respondent
Hearing date: 19 November 2018
____________________
Crown Copyright ©
Master Clark:
Application
(1) pre-action disclosure pursuant to CPR 31.16; and/or
(2) provision of information, said to be pursuant to CPR 31.18, but which, it is common ground, is sought pursuant to the Norwich Pharmacal jurisdiction.
Parties and the dispute
"* In October 2015,Pharmacy2U
was fined £130,000 for selling its patients' details to marketing companies including an Australian lottery. The Information Commissioners Office subsequently found that this data was used by the marketing companies to deliberately target elderly and vulnerable patients.
* Over Christmas 2015,Pharmacy2U
failed to send out prescriptions for three weeks, leaving thousands of patients stranded without their essential medicines.
* In February 2017, the Care Quality Commission inspectedPharmacy2U
and found that it was "not safe, effective or well led".
"Public information resources Pharmacy2U
Also enclosed is a poster and leaflet for your patients concerningPharmacy2U and pointing out the particular value you bring to the local community as a locally based independent pharmacy and small business, as distinct from an online supplier. You can download more copies of the leaflet from npa.co.uk."
(emphasis added)
"its primary purpose is to disparage the services offered by [P2U] by making reference to historic difficulties that the company experienced and using these to unfairly promote the services of [NPA's] members above those of [P2U].
In short, the Notice is nothing more than an attempt to rubbish the value of [P2U's] brand and divert business away from [P2U] to [NPA's] members."
I note that Mr Dannatt does not dispute the truth of the statements in the Notice.
(1) the information was personal data protected by the Data Protection Act;
(2) P2U was fully able to articulate its arguments as to liability and formulate particulars of claim;
(3) the documents sought related to quantum, not liability and would be disclosed at the appropriate stage in the litigation.
Legal principles
Pre-action disclosure
"(3) The court may make an order under this rule only where
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
" for jurisdictional purposes the court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail."
"among the important considerations the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure".
Norwich Pharmacal relief
"i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued."
Pre-action disclosure
(1) the names and contact details of all third parties to whom NPA has sent the Notice; and
(2) the names and contact details of all third parties who have downloaded the Notice from NPA's website.
NPA's evidence is that the Notice was sent to the members; and the application proceeded on the basis that the only relevant third parties were to whom the Notice was sent were the members.
(1) to enable P2U to understand the extent of the damage that it has been exposed to; and
(2) to enable it to contact those individuals, with a view to trying to address the ongoing harm being caused to P2U, amongst other things.
Norwich Pharmacal relief
"Although it may have previously been Chancery practice to permit applications for disclosure pursuant to Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, [1973] 2 All ER 943, HL to be made by Part 23 application notice, the better practice is to make the application by Part 8 claim form. An application under Part 23 is likely to be rejected.