Is your phone tracking you? Perhaps, but it is a mere witness to your whereabouts according to the Court of Appeal
In EUI Ltd v UK Vodaphone Ltd(1) a claimant insurance company sought a Norwich Pharmacal order for mobile phone records to prove that an insurance claim had been falsely made.
The Court of Appeal found that even where the records sought were likely to prove whether the insurance claim was false, the service provider was no more than a mere witness to the alleged wrongdoing and so it had no jurisdiction to make a Norwich Pharmacal order. In deciding this way, the court found that enabling a person to lie about their whereabouts did not mean that a mobile phone service provider was so involved in the lie so as to justify the disclosure of its records.
The claimant is an insurance company who issued a home insurance policy covering an address in London. The policy covered the costs of alternative accommodation where the policy holder was forced to live elsewhere but set a limit of £1,000 per month where the policy holder was able to stay with relatives. In August 2019, the policy holder made a claim for flooding and told the claimant that he and his family were staying with his parents. Then, in December 2019, the policy holder told the claimant that he and his family were renting a house for £1,850 per month and the claimant made payments covering that higher sum from December 2019 to May 2020.
Upon further enquiries, the claimant discovered that the rented house was owned by the policy holder's parents and started to suspect that he had concocted a formal tenancy to circumvent the £1,000 monthly limit on displacement costs. During the investigation, the policy holder gave a formal statement about his parents' whereabouts during the relevant period. The claimant doubted this statement and planned to issue proceedings to recover the excess payments made under the policy but, before doing so, wished to obtain proof that the policy holder's parents were not where he said they were in the relevant period.
The defendant is the service provider for the policy holder's mother's mobile phone. The claimant issued a claim against the defendant for a Norwich Pharmacal order on the ground that they intended to launch proceedings against the policy holder but required data showing the location of the mother's phone before doing so.
The first instance judge refused the claimant's application and the claimant appealed.
The Court of Appeal summarised the authorities setting out the requirements for granting a Norwich Pharmacal order, which are:
- A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
- There must be a need for an order to enable an action to be brought against that ultimate wrongdoer; and
- The party against whom the order is sought must be more than a mere witness to the wrong.
The question the court had to decide, therefore, was whether Vodaphone, the defendant, was more than a mere witness to the wrong that the policy holder had arguably carried out i.e., lying about the whereabouts of his parents in order to claim an uplift in the displacement costs payable under the policy. The claimant argued that Vodaphone was more than a mere witness because it had facilitated the wrong: unlike landlines, mobile phones have enabled people to lie about their whereabouts and by providing a mobile phone service Vodaphone had facilitated the ability of the policy holder's mother to pretend she was living elsewhere and her son to make a false insurance claim.
The court was not persuaded by this argument. The judges said that they could see that the policy holder's parents were arguably involved in the wrongdoing but that they could see no basis on which it could be said that his mother's mobile phone service provider was more than a mere witness to the wrong. The fact that the phone account holder was able to say she was in one place and be in another thanks to her mobile phone did not draw the phone company into her wrongdoing. They acknowledged that while it was true that the phone records sought might have assisted in establishing the truth, there was no real difference between Vodaphone and anyone else who may be able to provide evidence on that issue (including the milkman) who would manifestly be mere witnesses. The court therefore found that it had no jurisdiction to grant the Norwich Pharmacal order sought.
In setting out the third limb of the Norwich Pharmacal test, the court gave helpful guidance on what needs to be shown of the party against whom the order is sought. This limb is often expressed as requiring that party to have been so mixed up in the wrongdoing so as to have facilitated it. However, the court explained that this formulation is simply a means of demonstrating that the party is more than a mere witness to the wrong. If there are facts that fall short of demonstrating that that party facilitated the wrongdoing but that show that it was more involved than a mere witness would be, a Norwich Pharmacal order may still be ordered against it. What is required is that the party is more than a mere witness, not that it facilitated the wrongdoing (as is often stated).
This is particularly important in the contemporary context in which individuals create reams of data recording their day-to-day activities without effort and, often, any intention to do so: the entities who hold that data are likely to be mere witnesses to those activities such that the court will not compel disclosure of that data even where it would be likely to prove (or disprove) a claim against the individual. This is likely to be of considerable comfort to consumers in the digital age.
(1)  EWCA Civ 1771