Anthony McPartlin and Declan Donnelly (Ant & Dec), two TV presenters, were recently successful in their application for a Norwich Pharmacal Order (NPO) against an art dealer.
The order allows the art dealer to disclose information about art transactions, without concern over breaching confidentiality. With this information, Ant & Dec hope to discover whether people in the chain of transaction have made secret profits when they bought and sold art in their personal collection.
Their success in securing a NPO highlights an important but often overlooked legal tool—one that can be particularly valuable for High-Net-Worth Individuals (HNWIs) dealing with fraud, secrecy, defamation and complex financial arrangements. NPOs are able to cut through secrecy and restore transparency
The mystery behind the missing £250,000
Ant & Dec had entrusted a consultant to help them buy, sell, and loan some of the artworks they had collected.
In one transaction, Ant & Dec paid £550,000 to buy a set of six prints by Banksy. However, they say that the seller (Andrew Lilley of Lilley Fine Art Ltd) only received £300,000 and the other £250,000 is unaccounted for.
Similar discrepancies appeared from the sale and purchase of 22 other items.
Thus, the allegation is that someone made secret profits on the art transactions, either the consultant, or somebody else within the chain of transaction.
Ant & Dec applied to court for a disclosure order to obtain relevant information from the art dealer Andrew Lilley and his firm Lilley Fine Art Ltd. This order was not filed to accuse the art dealer involved, but to access the information needed to trace what really happened.
What is a Norwich Pharmacal Order?
A Norwich Pharmacal Order is a powerful legal mechanism that allows a claimant to compel a third party (often an innocent one) to disclose information linked to wrongdoing.
The principle originates from the landmark case Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133, which established that those “mixed up” in wrongdoing (even unknowingly) may be required to assist in identifying the wrongdoer.
In this case, the art dealer, who had previously declined to share details due to confidentiality concerns, can now legally disclose transaction information without fear of liability.
Benefits of a NPO
In industries like the art world, confidentiality is often treated as sacred. Dealers and intermediaries are concerned about breaking their duty of confidentiality to other clients.
Case in point is the Ant & Dec scenario. Andrew Lilley had previously refused to give information about the transactions, on grounds of confidentiality, but he said he would comply with a court order.
When you can get a NPO
Before an NPO is granted, a claimant must satisfy the following legal principles:
- The applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person (the Arguable Wrong Condition);
- The respondent to the application must be mixed up in so as to have facilitated the wrongdoing (the Mixed Up In Condition);
- The respondent to the application must be able, or likely to be able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued (the Possession Condition);
- And that ordering disclosure is fair and proportionate (the Overall Justice Condition).
The Overall Justice Condition protects the third party from potential fishing expeditions. In order to be proportionate, the request for information should be limited in some way. For example, a request for documents may be limited by time periods or custodians.
A NPO provides a safe route for disclosure, overriding concerns about breaching General Data Protection Regulation (GDPR) or the Data Protection Act 2018 in the UK. For claimants, it unlocks critical evidence that will allow them to bring a claim against the ultimate wrongdoer.
How can NPOs help High-Net-Worth clients?
For High-Net-Worth Individuals, Norwich Pharmacal Orders can be a game-changer in complex disputes where key information is hidden behind layers of intermediaries.
They are particularly used cases involving:
Art fraud and theft
As the Ant & Dec case demonstrates, NPOs can be a helpful tool to disclose the identities of purchasers, and other information about transactions.
In another recent case, Hickox v Dickinson & Anor [2020] EWHC 2520 (Ch), a NPO was granted to help discover the identity of the purchaser of a painting. The claimant wanted to recover her painting, entitled “Calanque de Canoubier (Pointe de Bamer)”, by starting proceedings against the third party purchaser.
The defendants argued that information about the sale was “confidential by reason of a general custom in the art world that the identity of clients of art dealers remain undisclosed” and that they worked in an industry of “wealthy individuals who place great emphasis on privacy and security.”
However, the judge, said that this custom in the art world was not a reason for denying the NPO; particularly when confidentiality was a custom rather than a legal obligation.
For more information on this case, please read our article.
Defamation, libel, and harassment
NPOs have been used successfully to obtain information from email providers, social media companies, web hosting company, and internet service providers where defamation, libel, and / or harassment has been alleged.
For example, in Davidoff and 5 others v Google LLC [2023] EWHC 1958 (KB) a NPO was granted against Google to identify individuals behind certain Google accounts. The claimants wanted to use this information to bring claims in defamation and malicious falsehood against people who posted fake reviews on Trustpilot.
Similarly, in Collier & Ors v Bennett [2020] EWHC 1884 (QB), a NPO was granted against a barrister to disclose messages and details of a Twitter account to help a victim of libel and harassment.
Cases concerning embezzlement or financial fraud
NPOs can be granted against banks to establish the name of a recipient of unlawful funds. This is often a strategy used in fraud cases to identify fraudsters and locate hidden assets.
