Information orders against non-parties: the new jurisdictional gateway

What has happened?

Information orders against non-parties

(25) A claim or application is made for disclosure in order to obtain information—

(a) regarding:

(i) the true identity of a defendant or a potential defendant; and/or

(ii) what has become of the property of a claimant or applicant; and

(b) the claim or application is made for the purpose of proceedings already commenced or which, subject to the content of the information received, are intended to be commenced either by service in England and Wales or pursuant to CPR rule 6.32, 6.33 or 6.36.

Analysis and practical advice

This amendment responds to the increase in cross-border fraud cases before the Courts of England and Wales, in particular cases involving digital and crypto assets, where relevant information is often held by parties outside of the jurisdiction, such as crypto exchanges or corporate service providers. See also our briefings on the High Court’s decision to grant a restraining order over non-fungible tokens held outside of the jurisdiction (Lavinia Deborah Osbourne v (1) Persons Unknown and (2) Ozone Networks Incorporated [2022] EWHC 1021 Comm), and the Court of Appeal’s decision to grant permission for service out of the jurisdiction of an order for disclosure against a non-party (Gorbachev v Guriev [2022] EWCA Civ 1270).

The new gateway addresses what the Court found in Osbourne to be an “unsatisfactory dichotomy” that had arisen from a series of decisions in which the Court permitted litigants to serve Banker’s Trust Orders outside of the jurisdiction (i.e. NPIOs in cases where applicants could demonstrate good arguable proprietary claims) but not Norwich Pharmacal Orders (i.e. NPIOs in cases where applicants could only demonstrate good arguable personal claims). In Osbourne, the Court observed that there was no reason in principle why those two different forms of NPIO should be treated differently for the purposes of permitting service out.

The introduction of the new gateway, however, does not mean that permission will now be granted as a matter of course, since applicants will still need to satisfy the other elements of the test for service out of the jurisdiction, namely that:

(a) there is a serious issue to be tried; and

(b) England and Wales is clearly the appropriate forum for the trial of the action.

Of these limbs, the key battleground is likely, more often than not, to be whether this jurisdiction is clearly the appropriate forum. As well, while the new gateway should, in theory, reduce the time involved in preparing for and hearing permission applications, the evidential burden remains a significant one as NPIOs will typically be sought on an ex parte basis, meaning the duty of full and frank disclosure will be engaged.

In practice, the extent to which the new gateway ultimately assists the victims of fraud will to a large extent turn on whether respondents – as parties both outside of the jurisdiction and who are not joined to the underlying claim – are prepared / consider it in their interests to comply with an order of the Courts of England and Wales, for example for reputational reasons or because they have commercial interests here. If there is a risk that the prospective respondent might not comply, applicants might still therefore find themselves weighing up whether they would be better off seeking relief in the local jurisdiction, to the extent that such relief is available.

Further reading

ESCOU Homepage

High Court grants permission for non-party disclosure application to be served out of the jurisdiction

High Court grants restraining order over NFTs confirming them to be “property” under English law