Court grants regulators the power to obtain disclosure from third parties in an important development in law for public bodies and regulators

A recent judgment of the High Court, in which Byrne Wallace Shields LLP acted for the applicant (the Chief Inspector of Social Services), represents a significant development of the Norwich Pharmacal jurisdiction in Ireland, confirming that such relief may be available to a statutory regulator for the purpose of regulatory investigation and enforcement rather than contemplated court proceedings and may extend beyond the mere identification of alleged wrongdoers.

The implication of this judgment is in its significance for our increasingly digitally mediated and regulated social lives. It signifies that the equitable jurisdiction in Ireland now reflects an acknowledgement that equity may be used by state regulators in the interests of vulnerable parties, albeit, in carefully prescribed ways. A party who holds detrimental or harmful information about a vulnerable cohort may be required to hand that material over, on conditions, to the duly appointed statutory custodian of that class. Here, that cohort was the residents of two nursing homes. In principle it might equally be consumers, patients, or indeed other classes of vulnerable people in situations of asymmetrical power.

From a regulatory perspective, the case also illustrates that some regulators consider their positive duty to extend to acting as fiduciaries of the vulnerable people they are appointed to protect. That is what prompted the application here and what made this, in our view, the correct intervention of equity to remedy the harm.

The judgment is of practical importance to any party holding information of this kind. Where a regulator establishes a legitimate need for material in the discharge of its statutory functions, data protection and privacy rights will not necessarily supply the answer. In this case, the Court concluded that the data protection and privacy rights were not a bar in relation to the urgent requirement of regulatory investigation. However, the judgment also emphasises that the Court will be careful to maintain appropriate safeguards at all times and will be cognisant of the rights of affected third parties and in particular vulnerable parties, who are not before the Court.

Notably, this is the first reported time that an Irish regulator has successfully drawn on this equitable jurisdiction in support of its regulatory function when faced with a gap in its own statutory powers. While the regulator was successful here, the route taken was not an efficient one. High Court proceedings involve significant outlay of both time and cost, and a regulator ought not to have to litigate in order to obtain material it needs to protect those in its charge. The question must therefore arise whether statutory deficits of this sort, once identified, could be more efficiently addressed by way of early legislative intervention. Given the volume of relevant material now held by third parties in the digital age, that question is unlikely to be confined to this case.

The Facts before the Court

A Norwich Pharmacal order is an equitable disclosure remedy which permits a court to require an innocent third party, “mixed up in” wrongdoing, to provide information which will assist in pursuing an alleged wrongdoer.

The proceedings arose from an RTÉ Investigates programme concerning conditions at two nursing homes. RTÉ’s undercover researchers had obtained covert footage, pertaining to the care provided to residents. The footage was edited for the purposes of the broadcast. Prior to the broadcast, RTÉ provided the Health and Information Quality Authority (“HIQA”) with a detailed report of its findings. 

The Chief Inspector of Social Services (“the Chief Inspector”), is designated by the Board of HIQA to inspect and regulate nursing homes. Following the broadcast, the Chief Inspector sought access to the complete unedited footage, which he regarded as essential to the discharge of his statutory functions. 

RTÉ, while welcoming regulatory action, maintained that it could only release the footage pursuant to a court order. Given the position taken by RTÉ, the Chief Inspector applied for a Norwich Pharmacal order seeking its disclosure.

The application here was unusual. The Chief Inspector did not seek to identify an unknown wrongdoer to enable him to bring civil proceedings against them. These are the usual circumstances in which Norwich Pharmacal relief has been previously granted in Ireland. Instead, the purpose of the order was to enable him to investigate possible regulatory breaches and to determine if further enforcement action was necessary.

In addition, there was no suggestion that RTÉ was “mixed up in” the alleged wrongdoing. This is a usual pre-requisite for the grant of Norwich Pharmacal relief against a respondent.

Norwich Pharmacal principles

Egan J granted the order. In doing so, she referred to the Court of Appeal decision in Blythe¹ which set out the applicable test here.

• Firstly, the applicant must demonstrate a strong case that a legally recognised wrong has been committed against it by a person.
• Secondly, the respondent must have been sufficiently involved or “mixed up in” in the wrongdoing.
• Thirdly, the respondent must possess, or be likely to possess, the information sought and there must be no other practicable or more appropriate means of obtaining it.
• Finally, even where these threshold requirements are satisfied, disclosure remains a matter for the Court’s discretion and must be proportionate in all the circumstances.

The Court emphasised that these requirements are important safeguards against an unwarranted expansion of the jurisdiction. At the same time, the jurisdiction is equitable and capable of incremental development.

Strong case of wrongdoing

As a first step, Egan J said that the applicant must demonstrate a “strong case” against the alleged wrongdoer. The Court should be satisfied that the applicant’s alleged claim was "likely to succeed at trial". Having viewed the broadcast, she considered that a strong case of breach of statutory duty and applicable regulatory provisions had been made out.

Necessity and the “missing piece of the jigsaw”

Egan J noted that RTÉ had confirmed that it retained the complete unedited footage. She was also satisfied that the Chief Inspector could not realistically obtain equivalent information from another source. 

She also accepted that given the functions conferred on the Chief Inspector for the protection of others, his exercise of statutory function could be equated with taking action to protect oneself against wrongdoing. She was therefore satisfied that the footage was sought for the purposes of pursuing a legitimate remedy arising out of the alleged wrongdoing and that to this extent the exercise of the Norwich Pharmacal jurisdiction was justified. 

The next question for the Court was whether the disclosure of the complete unedited footage was necessary for the purposes of such regulatory action. Egan J said that in Megaleasing,²  the Supreme Court was inclined to confine the remedy to the names and identity of the wrongdoer, rather than factual information concerning the commission of the wrong. 

In this case, the Chief Inspector sought to capture a fuller account of the actions alleged to constitute the wrongdoing to inform his regulatory response. Egan J noted that it was established in England and Wales that relief could be ordered where the identity of the wrongdoer was known but where the claimant required disclosure of a missing piece of the jigsaw.

She was satisfied that on the authority of Blythe, it was reasonable to conclude that exceptionally, the Court could order similar disclosure. In this case, the complete unedited footage was necessary for the stated regulatory purpose.

RTÉ’s involvement

Egan J acknowledged that a respondent should have been more than a “mere witness” or “mere bystander” to the conduct in question. She said that the most controversial issue for the Court was whether RTÉ satisfied this “mixed up in” requirement.

Egan J noted that in Blythe, Collins J had taken a causal approach here, holding that a meaningful requirement for involvement was essential if the jurisdiction was to be properly delimited.

However, she observed that Collins J was clearly concerned to ensure that bodies who had the statutory or public duty to investigate crime were not de facto co-opted as the inquiry agents of potential private litigants. On the facts here, the reverse was true. The body with statutory authority to investigate the practices in issue here was the very party seeking a Norwich Pharmacal order.

Egan J viewed RTÉ's role here as one of significant, albeit not causal involvement. RTÉ was not a mere witness or a bystander. It was actively engaged, not in the wrongdoing itself but in the investigation, recording and exposure of the wrongdoing.

She also noted that Collins J had commented that the threshold conditions identified in the case law were not set in stone and were subject to further judicial development. This case represented an appropriate incremental development of that jurisdiction.

Overall justice condition

Finally, the Court considered whether disclosure was proportionate in all the circumstances. Egan J noted that even where the threshold conditions were satisfied, the order was a matter of judicial discretion. The interests favouring disclosure must be balanced against those weighing the other way.

A strong case of regulatory breach had been made out. There was a strong public interest in enabling the Chief Inspector to investigate possible breaches affecting vulnerable nursing home residents. The Court also considered that the disclosure could assist in deterring similar wrongdoing and that the footage could not be obtained elsewhere.

In conducting a balancing of the rights involved, Egan J concluded that the data protection and privacy rights of the alleged wrongdoers were overridden by the urgent requirement of regulatory investigation.

She noted that the aim pursued here was the exercise of statutory duty directed towards the safeguarding of the nursing home residents. For this reason, Egan J was satisfied that balancing the Chief Inspector’s statutory functions and interests against the privacy rights of both the residents and their families, the balance favoured the disclosure order.

The Court also considered journalistic confidentiality. However, it stressed that the judgment should not be regarded as establishing any general rule requiring media organisations to disclose investigative material to regulators. RTÉ had not asserted journalistic privilege or freedom of expression in opposition to the order, the footage did not reveal confidential sources, and the existence of the undercover operation was already apparent from the broadcast.

Implications of the decision

In this significant judgment, the High Court has indicated its willingness to develop the Norwich Pharmacal jurisdiction incrementally to meet the practical requirements of modern regulatory enforcement. Equity has been put to work in the interests of a vulnerable cohort, with the result that a party holding harmful information about such a cohort may be required to surrender it, on conditions, to the statutory body appointed to protect them. However, the Court was also careful to emphasise that the equitable jurisdiction must be exercised with care and circumspection and with regards to the rights of affected parties not before the Court.

Please contact Jon Legorburu, Jill Callanan or Ben Grogan on our Litigation and Regulation team for further information. 

¹ Blythe v Commissioner of An Garda Síochána [2023] IECA 255. 

2 Megaleasing UK Ltd v Barrett [1993] ILRM 49.