In a recent decision A v. R1 & R2 [2022] HKCFI 3012, the Court of First Instance granted a Norwich Pharmacal order sought by a judgment creditor (A) against two banks (R1 and R2) for provision of bank documents relating to bank account(s) that a judgment debtor (B) may have maintained with each of the two banks in Hong Kong. This appears to be the first reported decision in Hong Kong to grant a Norwich Pharmacal order in aid of post-judgment execution.

Before commencement of A’s application, A had previously obtained monetary judgment against B in Country X. The evidence suggested that B had made consistent attempts to frustrate A’s recovery of assets. The purpose of the Norwich Pharmacal order sought in the present case therefore was to identify and locate general assets of B for possible enforcement of the money judgment obtained by A in Country X.

The guiding principles for the grant of a Norwich Pharmacal order are well established in a line of cases including the pervasively cited A Co v. B Co [2002] 3 HKLRD 111; such an order for disclosure is made against a third party whose only involvement is to become mixed up in the tortious or wrongful activities of others. Nevertheless, the question as to whether the court has jurisdiction to grant a Norwich Pharmacal order post-judgment has remained rather murky. In the English case NML Capital Limited v. Chapman Freeborn Holdings Ltd and others [2013] EWCA Civ 589, Tomlinson J left the question open and questioned whether Norwich Pharmacal relief is in fact available post-judgment in aid of execution. Further, Tomlinson J held that “if Norwich Pharmacal relief is available post-judgment in aid of execution it will only, I consider, be available in very particular and restricted circumstances. It could not be enough to engage the jurisdiction merely to trade with the judgment debtor.” In a more recent case ArcelorMittal USA LLC v. Essar Steel Ltd [2019] EWHC 724 (Comm), in granting a Norwich Pharmacal order ancillary to a freezing injunction post-judgment, Jacobs J held that relevant wrongdoing involved by a third party “can include cases where (i) assets are removed from a jurisdiction for no purpose other than to insulate them from execution in satisfaction of a judgment debt or (ii) assets are transferred between persons or companies for a similar purpose.”

Citing both decisions in NML and ArcelorMittal, the Court of First Instance drew inferences from the evidence produced by A and held that there was a real possibility that R1 and R2 had been mixed up in the wrongdoings as described by Jacobs J above, namely being unwittingly used to effect transfers in and out of Hong Kong as part and parcel of B’s plan to confuse and obfuscate. The Norwich Pharmacal order sought by A was granted.

This could be a welcome development for long-aggrieved judgment creditors, who have spent years battling with judgment debtors moving their assets using different bank accounts for the very purpose of hiding them from execution of judgment. Now they may be able to avail themselves of this powerful discovery tool to obtain information such as bank statements and transaction details. It is also worth noting that such relief will only be granted in limited circumstances, and the courts are likely to give further guidance in this regard in the future.