Ashley Fairbrother, with Jack Walsh, at Edmonds Marshall McMahon examines the Court of Appeal’s answer in EUI Limited v UK Vodafone Ltd [2021] EWCA CIV 1771 and says the decision shows that Norwich Pharmacal Orders (“NPO’s”) are only available to seek disclosure of mobile phone records if it can be shown that the mobile telephone provider was in some way ‘mixed up’ in the wrongdoing, as opposed to being a ‘mere witness’; this may not be easy to show.
What is the background to this case?
EUI Limited is an insurance company providing home insurance. A policy holder, based in London, reported a water leak and made a claim. A claim was made for displacement costs, paid at the capped rate of £1,000 per month since the policy holder was staying with his parents. The policy holder then presented to EUI an Assured Shorthold Tenancy (AST) and said he would no longer be staying with his parents but would be paying £1,850 per month for renting a property, for which he wanted to claim. EUI discovered that the rented property was in fact owned by the policy holder’s parents and began to make enquiries. The parents were initially said to have moved to India but then the policy holder and his mother provided accounts to the effect that the parents had gone to Milton Keynes for just a few days before returning. The insurer became concerned that the AST had been concocted to circumvent its cap on displacement costs where the policy holder was staying with relatives. EUI suspected that the parents had not in fact moved out at all, whether to India or Milton Keynes. Cell-site analysis of the mother’s phone would show where she was at the relevant time and whether the claim was fraudulent.
What were the issues?
The Court was required to consider the three conditions for the grant of Norwich Pharmacal relief, which were set out by Lightman J in Mitsui & Co Ltd v Nexen Petroleum (UK) Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511:
- A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
- There must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
- The person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued. They must not be a mere witness.
The High Court recently considered a similar application in FCFM Group Ltd v Hargreaves Lansdown Asset Management Ltd, EE Limited & Ors. [2018] EWHC 3075 (QB), where the applicant in that case failed to overcome the second limb, as there were already civil proceedings afoot in which disclosure applications could be made. The Judge did however make brief obiter comments on limb three, to the effect that he did not consider that the third parties were mixed up in the wrongdoing but were, at best, mere witnesses. In particular, the Judge regarded as “mere speculation” the suggestion that mobile telephones provided by EE, whose call and text records were sought, were used by the alleged wrongdoers for the purposes of wrongdoing.
In the instant case limb three took centre stage.
Are telephone communications providers ‘mixed up’ in the wrongdoing or ‘mere witnesses’?
In short, EUI sought the mobile phone records of the policy holder’s mother from the respondent, Vodafone, in order to use call and text records but, most notably, cell-site and GPS data to help prove its case. It seems that EUI was not putting its case on the basis, as it appears FCFM did, that the respondent mobile telephone provider was mixed up in the wrongdoing because calls and text messages on its mobile phone network facilitated that wrongdoing. Rather, EUI’s “ingenious” argument was that the mobility, per se, of the mobile phones was essential to the carrying out of the fraud. By contrast to land lines, ran the argument, mobile phones have enabled people to lie about their whereabouts at a given time. So, Vodafone was, albeit innocently, ‘mixed up’ in the wrongdoing, as opposed to being a ‘mere witness’ by virtue of providing mobile telephony. Thus, the Court was said to have jurisdiction to order disclosure of the records
This argument was rejected; Vodafone as the operator of the mother’s mobile phone was a mere witness. Whilst the Court accepted that the phone records may assist in establishing the truth of the parents’ whereabouts, in that regard the phone company is manifestly a mere witness, akin to a company that installs CCTV footage or a neighbour who observes a person; the phone company, the CCTV provider and neighbours are all mere witnesses. The fact that a mobile phone account holder could pretend she was elsewhere does not draw any given mobile phone provider into the wrongdoing. Vodafone was, as the provider of telephony that is mobile, in no different position than any other mobile telephone provider.
What options do you have?
The Court suggested that the correct course might be to ask for third-party disclosure against the mobile phone company once the proceedings were underway. This of course requires the commencement of proceedings before applying for disclosure of the evidence, which may involve a litigation risk depending on the state of other evidence prior to the application.
Other options available might include seeking pre-action or third party disclosure orders directly against the third parties that may have been mixed up in the fraud, for example, the parents, seeking evidence from them such as location data arising from their mobile phones, or other material showing where they had been during the relevant period.
Conclusion
Mobile phone data is increasingly seen by potential claimants as holding the answer to many questions and indeed it may do so. The jurisprudence has shown that the Court will not grant Norwich Pharmacal relief in respect of records unless the mobile telephone provider was in some way mixed up in the wrongdoing. This may be not be easy to show.
The result in the EUI Limited v UK Vodafone Ltd case may turn on the “ingenious” way the application was put, namely that it was the mobility, per se, of the phones provided by the respondent that mixed it up in the wrongdoing. Although the application for mobile phone records in the FCFM case was rejected on the basis it was a fishing expedition, if there was a sound evidential basis for arguing that mobile telephones had been used to carry out wrongdoing, i.e. that they were intrinsic to the wrongdoing, a court in future might be persuaded that a mobile telephone provider was indeed mixed up in the wrongdoing and was not a mere bystander.
Those considering bringing claims will, however, have to be prepared to explore other options to secure the evidence required to commence proceedings.
