Civil Enforcements / Norwich Pharmacal Order

notts_phil

So even if excel/vcs win the NPO then they CANT charge this to the other side?

Coblcris

vax2002 wrote: »

A reporter will be attending the court at 2pm to sit in on the proceedings.

He will be wasting his time.
Not only can this never be a ground breaking case at this stage, that requires the High Court - or better. The imminent hearing is to hear the application for the NPO so the scope is limited.
It remains to be seen if the application is granted but one wonders what documents they can be seeking to be revealed and on what grounds they believe that any such documents exist.
An NPO can be used to reveal information buts its use must be proportionate and necessary for example:
"C3485 MGN: Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29
[2002] 1 WLR 2033 HL. Upholding a (Norwich Pharmacal) order in private law proceedings, ordering a newspaper to disclose the identity of the intermediary who had supplied confidential medical information about Ian Brady, such an order could be made in order to assist in identifying the source who had released the information in breach of confidence. The order was necessary and proportionate so as to satisfy HRA:ECHR Art 10."
Some further considerations. It seems that the PPC is seeking remedy for a Tort (i.e Trespass) not for a breach of contract. Is their civil claim in fact based on tort or is it contract ?
A good summary of the original case:
"C3807 Norwich Pharmacal: Norwich Pharmacal Co v Customs & Excise Commissioners [1974] AC 133 HL. Production was ordered of documents held by the Commissioners, containing the names of illicit importers of a product infringing Norwich Pharmacal's patent. No public interest immunity applied. Where an innocent third party became involved in the tortious acts of another, even in the exercise of statutory powers, he was under a duty to assist the victim of the tort."

Is an NPO proportionate or necessary to obtain remedy for an alleged trespass ? What was the actual impact of the alleged trespass ? What Quantum does the PPC seek in damages for the Trespass ? Does the PPC even have the right to sue for Trespass - they require the proper rights to give them standing and unless they have them the NPO application is moot in my view. But prior to those questions how can the poster be "involved in the alleged tortuous act" of the driver when the poster was not in the vehicle nor was the driver acting as agent to the poster (I assume).

Do not take the above as explicit legal advice, I am not privy to the full papers of the case and this is just the internet. My comments are offered as food for thought and with no liability either express or implied.

peter_the_piper

So, it could be said that if someone who knows a thing or two was able to help a victim, then excel would be really spanked(again) and would not be able to use this again.

Sirdan

notts_phil wrote: »

So even if excel/vcs win the NPO then they CANT charge this to the other side?

Not quite they may seek to recover the cost as damages in the subsequent proceedings ..you know the ones where they invariable lose

NeverAgain_2

Sirdan wrote: »

Not quite they may seek to recover the cost as damages in the subsequent proceedings ..you know the ones where they invariable lose

They might seek to, but they won't succeed - the costs of an NPO cannot be rolled up into a subsequent claim.

Furthermore, the applicant - parking company - must pay the legal costs of the respondent - parker - although they are unlikely to amount to much.

However you look at it, the NPO is a complete non-starter from the parking company's point of view.

esmerobbo

kahlenb is there a reason you have not posted on Pepipoo?

You have asked for help yet been very sketchy on detail. You have 4 days to get help with what you need to do at court.

There is probably a one sentence defence for you, but you need to ask the correct people what you need to say when asked.

notts_phil

Ive rung melton mowbray county court on 0116 2225868 and it is a genuine case, listed for that date. However it is not an open court so would be at the judges discretion whos allowed in

Sirdan

NeverAgain wrote: »

They might seek to, but they won't succeed - the costs of an NPO cannot be rolled up into a subsequent claim.

Interesting because this site suggests otherwise :-

http://ld.practicallaw.com/0-211-3137

They say :-

"The applicant may be able to recover his costs of the application as damages in subsequent proceedings against the wrongdoer."

Have they got that wrong then ?

Because it seems logical that the claimant coulddo this. After all without the "wrong doing" there would be no need for the NPO so it could be argued that the cost of the NPO is damages incurred indirectly by the action of the "wrong doer" ..could it not ?

Probably a moot point as it seems highly unlikely that a Judge will grant an NPO, they are more usually for documentary / electronic records ...I see no way even with a court order that you can force someone to disclose the contents of his memory ..and that's assuming he even knows the information. As I've said before if the claimant has evidence that he is not the driver and he asserts that he can not remember or find out who is ..what exactly do VCS expect the court to do ...waterboard him perhaps to be sure ????

Coblcris

When the defendant was not in the vehicle on the day in question then they are not in possession of direct knowledge or facts as to who parked the car. There is nothing for them to remember as they were not there.
This has to be tempered with the lower burden of proof in civil cases of course.
If the event was long enough ago it hard to force someone to remember.

Something seems to have put an NPO bee in the bonnet of VCS/Excel for reasons unknown to us. They can afford good counsel but have they used one or is this being run by their Litigation Manager.
Does their Litigation Manager work for VCS or do they work for Excel. Despite common ownership the two companies are different legal entities as evidenced by their differing Company Number.
If the Excel Litigation Manager is appearing one would question if they have any standing. The photographs of the papers do not show who made the application for the NPO hearing unfortunately so as things stand this is supposition.

Is the NPO proportionate ? This seems unlikely
Is VCS seeking Tort damages or contractual fulfilment ?

It is most important to pay very close attention to the Bench at any hearing. One should not come across to the Bench as evasive or disengenuous. Remain honourable at all times and assist the court.
An LIP who establishes themselves so and who does not understand and so asks questions in order to understand is often looked on favourably. The Bench may have already taken a view before the hearing commences so paying close attention from the outset is imperative.

Should the NPO be granted VCS would still have to prevail in the following civil case. which brings us back to: is an NPO proportionate and what quantum is VCS seeking in the civil action.
It is arguable that the NPO is an abuse of the court process.

cirian75

sounds to me like this "new strategy" is to abuse the NPO proccess to scare the bajezzus out of people into paying.