The Use of Norwich Pharmacal Orders in Tackling Art Fraud and Theft

Nicola Sharp of Rahman Ravelli outlines a case that illustrates the circumstances when an NPO can be granted.

Norwich Pharmacal Orders (NPOs) are useful tools that, when granted, require the other side to disclose certain requested documents or information. They are commonly deployed against innocent third parties in order to fully establish a claim against a defendant. NPOs can, for example, assist with the identification of the proper defendant and/or other key information to be used in the tracing of misappropriated assets. 

The case of Hickox v Dickinson & Anor [2020] EWHC 2520 (Ch) explored the circumstances when an NPO can be granted. It is a case that gives particular hope to victims of art fraud and theft that the English courts are willing and able to assist victims in tracing the relevant property. 

Case Background

The circumstances of this case are that of a typical art fraud. The claimant (Ms Hickox) asserted that a painting entitled Calanque de Canoubier (Pointe de Bamer), created by the impressionist painter Paul Signac in 1986, had been stolen from her by a third party, Mr Timothy Sammons. Ms Hickox entered into arrangements with him to broker a sale. Unknown to Ms Hickox, Mr Sammons is a former art dealer who was convicted of fraud in the US in 2019.

The defendants, Simon Dickinson and Simon C Dickinson Ltd, are an art dealership and its director that acted as the agent for the purchaser of the painting. Mr Sammons arranged for the sale of the piece for $4.85 million to an unknown purchaser via the defendants. But when Ms Hickox realised that the painting had been stolen from her and set about trying to recover it, she did not know the identity of the person who had purchased it. It is common in the art world for the identity of a buyer to remain confidential. But this inevitably causes problems for victims of fraud or theft when it transpires that the art has been stolen. 

By commencing proceedings and seeking the NPO, the claimant sought information about the painting’s whereabouts and any transactions related to it that might help her locate it (such as the identity of the purchaser). 

Proceedings

In order to obtain an NPO, disclosure can be ordered where the claimant proves: 

1. There is a good arguable case that a wrong has been committed by an ultimate wrongdoer (which, in this case, was the third-party purchaser).
2. The respondent is involved in and has facilitated the wrongdoing;
3. The respondent is likely to be able to provide necessary information to enable the ultimate wrongdoer to be pursued.
4. Ordering disclosure is appropriate and proportionate.

The two key issues of this case to be decided were:

1. Whether Ms Hickox could successfully argue what wrong had been committed by the third-party purchaser (as per (i) above).
   
   This issue lay in the fact that Ms Hickox did not know if the information she sought would reveal that the wrong committed against her was actionable.
   
   The judge found that an application for an NPO will not be speculative where there is evidence other than the applicant’s belief or speculation (even if the specific wrong cannot be identified). In this case, it was held that Ms Hickox had a good arguable case against any person who had taken possession of the painting as Mr Sammons had stolen the painting without authority and the painting was delivered following the sale. In effect, the ruling of Hickox v Dickinson shows that the courts can push the scope of the test for NPOs when necessary.
   
   
2. Whether the defendants could rely on ‘confidentiality’.

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.”

The judge, however, disagreed with this argument. This custom in the art world was not a reason for not granting the NPO in favour of Ms Hickox; particularly when confidentiality was a custom rather than a legal obligation. The court granted the application for an NPO. It was held that the claimant had established a good arguable claim in conversion by a person other than Mr Sammons. 

Conclusion

The decision in Hickox v Dickinson shows that the courts are willing to extend the reach of the remedies available to those who have fallen victim to acts of art theft or fraud. 

The most notable points from this case are that 

• This decision has widened the availability of NPO relief where an applicant does not know whether the wrong committed against them was actionable, so long as there is a good arguable case of wrongdoing and it is not a fishing expedition.
• Whether information is confidential is not likely to be a sufficient factor to prevent an NPO.
• The jurisdiction of NPOs is flexible. Hickox v Dickinson has shown that it can be extended to assist victims of wrongdoing where justice requires.