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RFU v Consolidated Information Services Limited – Disclosure v Data Protection

Tuesday, 22 January 2013

The Supreme Court made an interesting recent decision to grant a disclosure order known as “Norwich Pharmacal relief” despite the presence of competing data protection rights. The Supreme Court affirmed the decision of the Court of Appeal but revisited the principles of proportionality that need to be considered by Courts while adjudicating issues requiring the grant of third party disclosures under the famous Norwich Pharmacal Order.

Lord Kerr categorically stated that the purpose of Norwich Pharmacal Order is to do justice, and, if the requirement of proportionality is met and the competing interests of both Parties are weighed properly, Courts will not refrain from granting third party disclosure orders.

Case Facts: RFU v Consolidated Information Services Limited

The Rugby Football Union (“RFU”), responsible for issuing tickets for rugby matches discovered that Consolidated Information Services Limited (“CISL”) (formerly “Viagogo Limited”), operated a website providing a platform for sellers to sell anonymously tickets for rugby matches, in breach of the terms and conditions of the RFU. CISL received a percentage of the price paid for the tickets, often sold at hugely inflated prices.

The RFU issued proceedings seeking disclosure of the identity of individual sellers under a Norwich Pharmacal Order. This was resisted by CISL who argued that such disclosure was against article 8 of the Charter of Fundamental Rights of the European Union as well as other data protection laws in the UK.

The Supreme Court’s Reasoning

The reasoning of the Supreme Court relied upon the principles established in the 1974 decision of Norwich Pharmacal Co v Customs and Excise Commissioners. Under those principles, an innocent party who facilitates the wrongdoing of another may be compelled to assist the wronged person by disclosing full information about the wrongdoers.

The Court noted that before granting a Norwich Pharmacal Order it was important to undertake the ‘test of proportionality’ and weigh the competing interests of the parties, i.e. the benefits to be derived from the disclosure of the information as against the infringement of data protection rights.

The Supreme Court’s Conclusion

The Supreme Court, after weighing the relevant factors held in the favour of RFU, rejecting the submission of CISL that granting of Norwich Pharmacal Order would result into an ‘unfair’’ and ‘oppressive’ treatment of those affected by it.

According to Lord Kerr, the persons affected under the Norwich Pharmacal Order would be those who had engaged in the sale of tickets in breach of the terms on which RFU had supplied to them. The Court concluded that the grant of Norwich Pharmacal Order would not only reveal the identity of the wrongdoers in the present case but would also create a deterrence of detection for those who contemplating similar activity in the future.

If you would like further information regarding the implications of this case, Rollingsons has experienced lawyers who can advise you. Please contact James Crichton via e-mail or by telephone on 0207 611 4848.