Overview of Norwich Orders
Named after the 1974 decision from the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners[1], a Norwich Order is an exceptional equitable remedy. It permits discovery of a third party even where a lawsuit may not have yet been initiated. In other words, a Norwich Order may be used by a party contemplating litigation to seek information and documents necessary for determining whether a cause of action will be litigated, or whether a cause of action even exists at all.
The Supreme Court of Canada has described a Norwich Order as a “type of pre-trial discovery which, inter alia, allows a rights holder to identify wrongdoers.”[2] As the Ontario Court of Appeal explains,
The remedy of pre-action discovery derives from the ancient bill of discovery in equity. Contemporary consideration of this type of equitable relief began with the 1974 decision of the House of Lords in Norwich Pharmacal, a case of suspected patent infringement. Norwich Pharmacal holds that, in certain circumstances, an action for discovery may be allowed against an “involved” third party who has information that the claimant alleges would allow it to identify a wrongdoer, so as to enable the claimant to bring an action against the wrongdoer where the claimant would otherwise not be able to do so…[3]
While an exceptional remedy, the Norwich Order is also a flexible one. It can be used by a party in a variety of ways, including:
(i) where the information sought is necessary to identify wrongdoers;
(ii) to find and preserve evidence that may substantiate or support an action against either known or unknown wrongdoers, or even determine whether an action exists; and
(iii) to trace and preserve assets.[4]
Obtaining a Norwich Order is, however, no easy task. To obtain a Norwich Order, an applicant must establish:
(a) [a bona fide claim] against the unknown alleged wrongdoer;
(b) the person from whom discovery is sought must be in some way involved in the matter under dispute, he must be more than an innocent bystander;
(c) the person from whom discovery is sought must be the only practical source of information available to the applicants;
(d) the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs;
(e) the public interests in favour of disclosure must outweigh the legitimate privacy concerns.[5]
The validity and power of a Norwich Order was recently contemplated by the Supreme Court of British Columbia. In the 2025 decision of Wang v. Binance Holdings Ltd,[6] the petitioner alleged he fell victim to a sophisticated cryptocurrency investment scam. The petitioner applied for a Norwich Order requiring the respondent cryptocurrency platforms, Binance Holdings Ltd. (Binance) and Coinbase Global Inc. (Coinbase), to disclose information relating to the identifies of the account holders who received certain bitcoin transactions on their platforms, identified by transaction hashes. Binance is based in the Cayman Islands, and Coinbase is based in the United States.
The petitioner did not allege any wrongdoing against Binance or Coinbase. Instead, the sole purpose of the petition was to obtain the production and preservation orders, and potentially commence an action against account holders and possibly others.
The Court first considered its jurisdiction to grant the orders sought against the non-resident respondents. Relying on Equustek Solutions Inc. v. Google Inc.[7], the Court found sufficient connection to British Columbia for it to assume in personam jurisdiction over the respondents. According to the Court, the respondents have more than a mere passive presence in British Columbia, since their apps are available for download in the province and allow users to create accounts, deposit funds, and trade various cryptocurrencies on the platforms, including bitcoin.
The Court then found the test for granting a Norwich order was met in this case. According to the Court, it was in the interests of justice to grant the Norwich orders sought because (1) granting the orders will increase the probability that the petitioner will recover his stolen funds; and (2) individuals like those whose identities the petitioner seeks will be less inclined to engage in cryptocurrency scams if their identities may be exposed through Norwich orders. Finally, the Court concluded it ought to exercise its discretion and order that the bitcoin associated with the identified transaction hashes on the respondents’ cryptocurrency platforms be preserved.
When to seek a Norwich Order and important considerations
While Norwich Orders are powerful tools, they are exceptional.
Norwich Orders are most commonly sought before litigation has been commenced, although this is not a requirement. Courts have confirmed that Norwich Orders may be appropriate after litigation has been commenced but typically for the purpose of obtaining the identity of a party required to prosecute an action.[8] As a result, where counsel is considering a Norwich Order after commencing proceedings, they should consider whether production and discovery of non-parties is available under provincial rules of procedure. In British Columbia, production of non-parties is allowed and governed by Rule 7-1(18) of the Rules and supported by relevant jurisprudence.[9] In these instances, a Norwich Order is likely not necessary.
Counsel must also consider the cost implications of Norwich Orders. An applicant obtaining a Norwich Order will bear the costs arising out of compliance with the order.
Lastly, an applicant seeking a Norwich Order must focus on the importance and the justification for the Norwich Order request. In GEA Group AG v. Flex-N-Gate Corporation, the Ontario Court of Appeal set aside the granting of a Norwich Order, on the basis that the applicant did not “demonstrate that the discovery sought is required to permit a prospective action to proceed.”[10] The Court of Appeal found that while necessity is not a stand-alone requirement for the granting of a Norwich Order, it remains an important element of a court’s assessment on the appropriateness of such an order:
On the contrary, in my opinion, the limits of the necessity criterion for a Norwich order must be established in the context and on the facts of each particular case. While an applicant for Norwich relief must establish that the discovery sought is needed for a legitimate objective, this requirement may be satisfied in various ways. The information sought may be needed to obtain the identity of a wrongdoer (as in Norwich Pharmacal), to evaluate whether a cause of action exists (as in P. v. T.), to plead a known cause of action, to trace assets (as in Bankers Trust and Leahy), or to preserve evidence or property (as in Leahy). The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.[11]
Key takeaways
- Norwich Orders are powerful tools that allow parties access to the information needed to make an informed decision on whether or not to initiate litigation.
- Norwich Orders are exceptional. Applicants must be prepared to establish all required elements.
- Costs are a relevant consideration in seeking a Norwich Order. An applicant must be prepared to cover the costs associated with compliance with the order.
- Counsel should consider whether their respective provincial rules allow for other mechanisms for third party production. The applicant will need to justify the necessity for such an exceptional remedy.
If you have questions about this case, or the law of Norwich Orders in general, please contact the author, Kay Scorer.
[1] [1974] A.C. 133 (“Norwich Pharmacal”)
[2] 2018 SCC 38, at para 18.
[3]GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, at para. 41 (“GEA Group”).
[4] lberta Treasury Branches v. Leahy, 2000 ABQB 575, at para. 109.
[5] Ibid, at para 18.
[6] 2025 BCSC 425.
[7] Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265.
[8] See, for example, Brito v. Terry L. Napora Law Corp, 2016 BCSC 1476, at paras. 18 – 20.
[9] See, for example, Century Services In. v. LeRoy, 2012 BCSC 1079.
[10] GEA Group, supra note 3 at para. 85
[11] Ibid at para. 91.
