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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Al-Ajeel v Anglian Renewables Ltd [2025] EWHC 806 (KB) (02 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/806.html Cite as: [2025] EWHC 806 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2025

Mr Justice Wall:

1. The Appellant was the owner of a property situated at 12 Woodland Walk, London NW3. The Respondent is a company involved in the provision and installation of solar panels. In 2021, the Appellant's then wife contracted with the Respondent for the provision and installation of solar panels at their house. The installation of those panels on the roof necessitated the erection of scaffolding around the outside of the house. The Respondent engaged sub-contractors to erect the scaffolding. The Appellant's case is that on 16 or 17 March 2021 the sub-contactors negligently damaged a valuable table in the garden while erecting the scaffolding.
2. The Appellant firstly sued the Respondents for damages. That claim was lodged on 16 June 2021 and given the claim number H30YJ343 . The Appellant lost that case and judgment was entered against him on 7 March 2022. A copy of that judgment is not available to me. A subsequent application for leave to appeal was dismissed on paper on 16 June 2022 because the judge on that occasion concluded that the application had been made out of time with no good explanation provided for the delay and that, in any event, the appeal had no merit. An application to set aside that order was refused on 12 September 2022.
3. The Appellant now wishes to sue the sub-contractors in negligence for his losses. However, he does not know the identity of the sub-contractors. He asserts that the Respondent must be aware of their identity as they hired them to do the job. The Respondents will not reveal their identity to the Appellant. Therefore, the Appellant applied for an order that their identity be vouchsafed to him.
4. His application is dated 14 March 2023. It was made as part of the claim with the reference number H30YJ343. The application was heard by Recorder Rowlands in the Central London County Court on 11 August 2023. She refused to make the order sought by the Applicant. An application for leave to appeal was refused on paper by Kerr J on 8 October 2024 but granted at an oral renewal by Heather Williams J on 29 November 2024. She gave leave on one ground only – that ground being that the judge was wrong to reject the application for disclosure as the requirements of Norwich Pharmacal were complied with. She refused leave on other grounds which had no merit and which I do not need to address.
5. The application is of the type commonly referred to as a Norwich Pharmacal application and is made under CPR Part 31. The factors to be considered were set out in Norwich Pharmacal -v- Customs and Excise Commissioners [1974] AC 133 as expanded on in Collier -v- Bennett [2020] EWHC 1884. They are:

(a) Whether the applicant has a good arguable case that a legally recognised wrong has been caused to him by the party whose identity he seeks to establish.

(b) Whether the respondent was mixed up in the wrongdoing so as to have facilitated it.

(c) Whether the respondent is likely to be able to provide the information sought.

(d) Whether it is appropriate and proportionate to make the order.

6. Recorder Rowlands in her short judgment of 11 August 2023 refused the application as it was not an appropriate and proportionate order for her to make. She indicated that "the balance was quite finely weighted on either side", but declined to make the order on two bases. Firstly, that the engagement of the scaffolders by the Respondent did not mean that they were mixed up in the act which damaged the table. This was because they did not give any instructions to the subcontractors about the table and did not cause or encourage their negligence. Secondly, that the Appellant had already had an opportunity to prove his case in his action against the Respondents. There was no fresh evidence to be considered in any future claim. Finally, when considering whether to exercise her discretion to make the order, the Recorder noted that the Respondent was being vexed by further litigation.
7. I must only allow this appeal if I conclude that the decision of the lower court was wrong or was unjust because of serious procedural or other irregularity in the proceedings before the lower court: CPR 52.21(3). No serious irregularity is alleged in this case. Therefore, I shall concentrate solely on whether the decision of the lower court was wrong.
8. Although the Recorder found that the Respondents were not mixed up in the wrongdoing and made this finding part of her consideration as to whether it was proportionate and appropriate for her to make the order (stage 4 of the Norwich Pharmacal test), this finding should have been considered alone as it is a finding which relates directly to stage 2 of that test. Setting that aside, I must consider whether this was a finding which it was open to her to have made. I have decided that it is not. The Respondents engaged the sub-contractors to do a specific piece of work. The negligence, if it occurred at all, happened while that work was being carried out. It was the engagement of the sub-contracting scaffolders by the respondents which facilitated their alleged wrongdoing. The Respondents are not to be regarded as mere by-standers to whatever occurred. This is a sufficient basis for a finding that the Respondents were mixed up in the events. There was no need for the Appellant to establish that the Respondents played any active part in the negligent act. The "mixed up" test sets a much lower barrier than that. The question as to whether these Respondents were mixed up in the events permits of only one proper answer.
9. The other reason given by the Recorder for refusing this application was that the Appellant had already had one bite of the cherry and it was disproportionate to make an order designed to give him a second bite at that same fruit. I do not have details as to how the original case was framed. I know that there is an eye witness now available to the events who it seems was not available at time of the original trial. In addition, any future case will be against the scaffolders rather than against the Respondents. I cannot say that the issues which might arise at any second trial have already been decided. Whether they have already been decided, may be the subject matter of an application at a later stage should I grant the relief sought.
10. It is unclear from the judgment how much weight the Recorder gave to the potential vexation to the Respondent which might be caused by further litigation. The fact that she mentioned it without indicating that it was not a matter of relevance indicates that she gave it some weight. In reality, it was not a relevant consideration and should have played no part in the exercise of her discretion. Any further litigation which might arise from this application could only have been targeted against the sub-contractors and not against the Respondents. They were not at risk of any future vexing litigation.
11. Against the background of the judge having found that the balancing exercise was "quite finely weighted", the findings I have made, had they been properly factored into the equation, would have meant that the Recorder would inevitably have reached a different conclusion as to the merits of this application. It follows that I conclude that the balancing of factors performed by the Recorder was faulty.
12. However, that is not the end of the matter. As is revealed by the chronology of events, the application for disclosure was not made until 14 March 2023. It was made as an application in the original action between the Appellant and the Respondents – that is, the action concerning the Appellant's claim for damages (H30YJ343). That action was finally brought to an end when the application to set aside the refusal of the Appellant's application for leave to appeal the judgment entered against him on 7 March 2022 was refused on 12 September 2022. Therefore, at the time at which the Appellant made this application for disclosure in March 2023, there was no live on-going litigation between the Appellant and the Respondents. Had that litigation still been on-going, it would have been permissible for the Appellant to have made an application of the sort which he has made as part of that litigation. However, once that litigation was ended, this application could only be made once the Appellant commenced further free standing proceedings against the Respondents. A Norwich Pharmacal application must be attached to some live proceedings – either an on-going claim to which it is related, or a free standing claim brought for the purposes of making the application.
13. The Appellant argues that there might be an as yet unidentified power in the court to hear a Norwich Pharmacal application in the absence of any live proceedings. That is a bold submission. It runs contrary to the general rule that an application of this nature must form part of a claim even if a claim brought solely for the purposes of disclosure. I reject that submission.
14. It was further argued that the original case has not yet ended. Applications, for example applications in relation to enforcement of a judgment debt, can be made in a case after the entry of judgment. That is true. However, those are applications directly related to the judgment and necessary in order to give effect to that judgment. This is not the case here. It was argued that this application was part of the original case as it was made necessary by the terms of the judgment in the original action. The argument goes: had the Appellant won the original action, he would not have had to make this application. That again is true. That does not make this application akin to an application for enforcement of judgement. The loss in the original trial is no more than the factual background to this application. This application is made in order to sue a different party even though the factual background to any future suit would be similar to this. In my judgment this application cannot in any way be regarded as part of the action justifying an application of this sort at this time.
15. In those circumstances, the Recorder was right to refuse the application for disclosure; not for the reasons she gave but because she had no jurisdiction to grant it.
16. Therefore, I am driven to refuse this appeal. I have set out what my approach would have been to this application had I been able to make the order sought in case the Appellant decides to make a fresh application in free standing proceedings. Although I cannot bind any future court as to its approach to a further application, it might be that the Respondents will want to think about what I have said about the merits of the case and give further thought to their position on disclosure.