HL Norwich Pharmacal Co v Comrs of Customs 943 Norwich Pharmacal Co and others v Commissioners of Customs and Excise HOUSE OF LORDS LORD REID, LORD MORRIS OF BORTH-Y-GEST, VISCOUNT DILHORNE, LORD CROSS OF CHELSEA AND LORD KILBRANDON ard, 26th, 28th rapruany, rst, 2nd, sth, 6th, oth, 12th, r3th, rath, 16th, roth, 20th, ‘21St MARCH, 26th JUNE 1973 Discovery - Production Se een eres ome only - No reasonable cause of action against party from whom discovery sought - Purpose of order to obtain information so that proceedings may be brought against third parties - Circumstances in which order may be made ~ Defendant having innocently facilitated commission of wrongful acts - Commissioners of Customs and Excise - Information in possession of commissioners including names of importers of goods - Information obtained under statutory powers - Importation of goods constituting an infringement of plaintiffs’ patent — Plaintiffs seeking order for discovery against commissioners to enable plaintiffs to proceed against importers. Discovery Production of documents - Privilege - Confidential documents - Documents obtained under statutory powers Commissioners of Customs and Excise - relating to importation of goods - Importation of goods constituting an t of plaintiffs’ patent - Plaintiffs wishing to obtain information as to names of importers in order to bring proceedings against them- Whether commissioners privileged from disclosing information on grounds of public interest. The appellants were the owners and licensees of a patent covering a chemical com- pound known as ‘furazolidone’. Information published by the respondents, the ‘Commissioners of Customs and Excise, showed that some 30 consignments of furazo- idone had been imported into the United Kingdom between 1960 and 1970, None of thiose importations had been licensed by the appellants. Each of the consign- ments therefore involved a tortious infringement of the appellants’ patent. The appellants tried to discover the identity of the importers in order to bring legal proceedings against them but were unable todo so. When the goods were imported the respondents, in the exercise of their statutory duty, had obtained information relating to the goods including the names of the importers. On importation the goods came under the control of the respondents who directed the goods to be held in transit sheds until, the necessary formalities having been completed and the customs duties paid, they were released to the consignees, The appellants asked the respondents to supply them with the names of the importers of furazolidone but the respondents replied that they had no authority to do so. The appellants then brought an action against the respondents claiming, inter alia, an order for discovery of the names of the importers. Graham J* granted the order sought but the Court of Appeal? reversed his decision holding (i) that since the appellants had no cause of action against the respondents they could not obtain an order for discovery against them and (ii) that in any event, since the names of the importers had been given to the respondents in confidence and under a statutory duty, the public interest required that they should not be compelled to disclose them. On appeal, Held-The appeal would be allowed and an order for discovery made for the following reasons— () Although as a general rule no independent action for discovery would lie against @ [17a] x AUER 972 b [1972] 3 AIL BR 813944 All England Law Reports [1973] 2 All ER a person against whom no reasonable cause of action could be alleged, or who was in the position of a mere witness in the strict sense, the rule did not apply where (a) without discovery of the information in the possession of the person against whom discovery was sought no action could be begun against the wrongdoer, and (b) the person against whom discovery was sought had himself, albeit through no fault of his own, been involved in the wrongful acts of another so as to facilitate the wrongdoing. In such circumstances, although he might have incurred no personal liability, he was under a duty to assist the person who had been wronged by giving him full information and disclosing the identity of the wrongdoer. In the per- formance of their statutory duties the respondents had been sufficiently involved in the importation of furazolidone in breach of the appellants’ patent as to impose ‘on them, subject to considerations of public policy, a duty to disclose the identity of the importers so.that the appellants could commence proceedings against them (see p 947 h to p 948acd gh andj, p 9sr g toj, p 953 cand ef, p 954 b, p 960 to f, p 966 b cand de, p 968 c toe, p 973 b to f and g, p 974 ab and de and p 975 gh, post); Moodalay v Morton (1785) x Bro CC 469, dicta of Lord Romilly MR and Lord Hatherley LC in Upmann v Elkan (1871) LR 12 Eq at 145, 7 Ch App at 133, Orr v Diaper (1876) 4 Ch D 92, and Post v Toledo Cincinnati and St Louis Railroad Co (1887) rz NE 540 applied; Queen of Portugal v Glyn (1840) 7 Cl & Fin 466 distinguished. (ii) Even if the respondents had been right in treating the information relating to the identity of the importers as confidential, there was no statutory provision which prohibited the court from ordering discovery for the purpose of legal proceedings if the public interest in the proper administration of justice required it. In the cir~ cumstances the public interest in such confidentiality as might attach to the names and addresses of the importers was outweighed by the interests of justice in disclosure for the purpose of the appellants’ intended proceedings (see p 949 a and c and h, p 954 jsp oss by p 961 ab and de, p 962 bc, p 968 h, p 969 a b and gh and p976 b tod and g, post). Per Lord Reid, Viscount Dilhorne and Lord Cross of Chelsea. In any case in which there is the least doubt whether a person asked to disclose the name of a third party should do so, that person would be fully justified in saying that he would only make disclosure under an order of the court, the costs of the application to the court being borne by the person making the request (see p 949 g h, p 962 b, p 969 j to p970 c, post). Decision of the Court of Appeal [1972] 3 All BR 8r3 reversed. Notes For discovery when party defendant for purposes of discovery only, see 12 Halsbury’s ‘Laws (3rd Edn) zo, 11, para 11, and for cases on the subject, see 18 Digest (Repl) 6, 7, 19-23. For privilege where disclosure of documents is contrary to the public interest, see 12 Halsbury’s Laws (3rd Edn) 53-55, para 73, and for cases on the subject, see 18 Digest (Repl) 139-142, 1256-1282. Cases referred to in opinions Angel v Angel (1822) x LJOSCh 6, x Sim & St 83, 57 ER 33, 22 Digest (Repl) 608, 7006. Butterworth v Bailey (1808) 15 Ves Jun 358, 33 ER 789. v Tatham (1902) 23 NLR 153. Dixon v Enoch (1872) LR x3 Eq 394, 41 LJCh 231, 26 LT 127, 18 Digest (Repl) 184, 1589. Fenton v Hughes (1802) 7 Ves Jun 287, 32 BR 117, 18 Digest (Repl) 8, 39. Hart v Stone (1883) Buch AC 309. ‘Hunt v Maniere (1864) 34 Beav 157, 5 New Rep 181, 34 LJCh 142, 11 LT 469, x1 Jur NS 28, 55 ER 594, 3 Digest (Repl) 108, 308. Mayor and Commonalty and Citizens of London v Levy (1803) 8 Ves Jun 398, 32 BR 408. Moodalay v Morton (1785) 1 Bro CC 469, Dick 652, 28 ER 1245, 18 Digest (Rep!) 142, 1297. Nelson (James) é> Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217, 75 LJKB 895, 95 LT 180, 10 Asp MLC 265, 11 Com Cas 228, CA, 18 Digest (Repl) 19, 134.~ ~ HL Norwich Pharmacal Co v Comrs of Customs 945 Orr v Diaper (1876) 25 WR 23, 4 ChD 92, 46 LJCh 41, 35 LT 468, 18 Digest (Rep!) 6, 17. Plummer v May (3750) 1 Ves Sen 426, 27 ER 1121, 18 Digest (Repl) 8, 38. Portugal (Queen of) v Glyn (1840) 7 Cl & Fin 466, 7 ER 1147, HL; rvsg sub nom Glyn. v Soares (1836) 1 Y & C Ex 644, 18 Digest (Repl) 8, 41. Post v Toledo Cincinnati and St Louis Railroad Co (1887) 11 NE 540. Rowell v Pratt [1937] 3 All ER 660, [1938] AC ror, 106 LJKB 790, 157 LT 369, HL, 22 Digest (Repl) 394, 4221. Upmann v Elkan (1871) LR 12 Eq 140; on appeal (1871) 7 Ch App 130, 41 LJCh 246 25 LT 813, 36 JP 295, 28 (2) Digest (Reissue) 1157, 1589. Upmann v Forester (1883) 24 Ch D 231, 52 LJCh 946, 49 LT 122, 47 JP 807, 28 (2) Digest (Reissue) 1162, 1636. Willis & Co v Baddeley [1892] 2 QB 324, 61 LJQB 769, 67 LT 206, CA, 18 Digest (Repl) 20, 147. Appeal By a writ issued on 4th February 1969, subsequently amended, and re-issued and re-amended, the appellants, Norwich Pharmacal Co (now known as Morton-Norwich Products Inc), Smith, Kline and French Laboratories Ltd and Norwich Pharmacal Co, brought an action (1969 N 230) against the respondents, the Commissioners of Cus- toms and Excise, claiming (i) a declaration that the respondents had infringed and caused, enabled or assisted others to infringe letters patent no 735,136relating to goods known as ‘furazolidone’, (ii) a declaration that it was the respondents’ statutory duty to forfeit all imported furrazolidone in their possession, custody or control which had not been licensed for importation by the appellants, and (iii) an order that the re- spondents (a) set forth and disclose to the appellants in the case of each consignment of furazolidone imported without the appellants’ licence the names and addresses of the consignors and consignees thereof, the quantity of furazolidone therein and the date thereof; (b) give the appellants full and complete discovery of all documents which were, or had been, in their possession relating to the imported consignments of furazolidone. On 19th May 1970 the appellants reserved an amended statement of claim together with particulars of breaches describing how third parties, whose names were unknown to the appellants, had infringed the letters patent of which the appellants were respectively at all material times the registered proprietors and exclusive licensees; para 2 of the amended particulars of breaches gave a list of the acts of the unknown third parties of which the appellants complained and which had occurred between March 1960 and August 1968; the particulars specified the month in which each consignment of furazolidone had been imported, the country from which it had been imported, and the quantity and value of each consignment. By their defence dated sth August 1969, as amended, the respondents admitted that goods described as furazolidone had been imported into the United Kingdom by persons other than the appellants and that, by virtue of ss 26, 28 and 29 of the Cus- toms and Excise Act 1952, they had knowledge of the names and addresses of the consignor and importer of each consignment of furazolidone and the date of importa- tion, but denied that they were or had been parties to, or had caused, enabled or assisted, the infringements of the third parties and made no admission that proceed- ings against the third parties could not be initiated or maintained by the appellants without the discovery sought. On 7th April 1970, in pursuance of an order for discovery on an interlocutory summons by the appelans, the respondents served a list of documents which were, or had been, in their possession or control; the list included (in Part 3 of Sch 1) the special chemical register, customs entries delivered Ge the eespuclene by Gctamal Gear tan tas appli (elsucal ts ts kere of goods declared as furazolidone, and ships’ reports, cargo manifests, correspondence and books of account relating to such importations; the respondents objected to the production of the documents listed in Part 3 of Sch 1 on the grounds (a) that they946 [1973] 2 All ER were precluded by law from disclosing them and (b) that their disclosure would be injurious to the public interest because they contained confidential information about the affairs of persons other than the appellants furnished to the respondents by such persons pursuant to ss 26, 28 and 29 of the 1952 Act. By a writ issued on sth August 1970, and subsequently re-issued and amended, the appellants brought a second action (1970 N 1809) against the respondents claiming relief similar to that claimed in the first action; the statement of claim served on sth August 1971 alleged continuing breaches of the letters patent; the particulars of infringement served with the statement of claim specified, in para 2, the consign- ments of furazolidone which had been imported between November 1968 and February 1970. The respondents’ defence was similar in terms to that served in the first action and in their list of documents the respondents objected to discovery of the customs entries etc (listed in Part 3 of Sch 1) relating to the importation of furazolidone on the same grounds as in the first action. By an order dated arst January 1971 following summonses for directions Master Smith ordered that both actions be consolidated and that the respondents produce all documents which by the list of documents appeared to be in their possession custody or power except those documents to whose production they objected. By a summons for directions dated 3rd March 1971 the appellants applied for discovery ee ote and further requested that those documents produced for inspection by a master for ie pares of his deciding as to the validity of the claim of privilege for them. ‘The summons was adjourned into court. On 8th December 1971 Graham J* ordered the respondents to set forth and disclose to the appellants in the case of each importation referred to in para 2 of the amended particulars of breach served by the appellants in action 1969 N 230 and in the case of each importation referred to in para 2 of the particulars of infringements served by the appellants in action 1970 N 1809 (a) if the customs entry in respect of such impor- tations was still in the possession of the respondents the name and address of the person appearing from the customs entry to be the importer thereof, and (b) if the Customs entry in respect of each importation was no longer in the possession of the respondents the name of any person appearing from the special chemical register to be the importer thereof, and (c) in every case identifying such importation by the quantity thereof and the month in which the customs entry in respect thereof had been delivered to the respondents. ‘The respondents appealed to the Court of Appeal and, on asth July 1972, the court? (Lord Denning MR, Buckley and Roskill LJJ) allowed the appeal and discharged the order of Graham J. The court refused leave to appeal to the House of Lords but, on 7th November 1972, the appeal committee allowed a petition by the appellants for leave to appeal. Anthony Walton QC, Robin Jacob and Peter Prescott for the appellants. P R Oliver QC, P L Gibson and W Bruce Spalding for the respondents. ‘Their Lordships took time for consideration. a6th June, The following opinions were delivered. LORD REID. My Lords, the appellants own patent no 735,136 which covers a chemical compound called furazolidone. The validity of the patent is not in dispute. ‘This substance is widely used and matter published by the respondents shows that some 30 consignments of it were imported into the United Kingdom between 1960 1 [1972 x All ER 972, [1972] Ch 566 2 [1972] 3 All ER 813, [1972] 3 WLR 870 c~ HL Norwich Pharmacal Co v Comrs of Customs (Lord Reid) 947 and 1970. None of these were licensed by the appellants. Each of these consign- ments therefore involved a tortious infringement of their right. The appellants have tried, but with little success, to discover the identity of the importers. ‘When any goods are imported the master of the ship bringing them and the importer have to lodge documents with the customs which disclose the identity of the importer, It is not disputed that the respondents have in their possession docu- ments shewing who importedeach of these consignments and theappellants now seck to get from the respondents by way of discovery the names of those who are shewn in their records to have imported furazolidone during the last six years in order that the appellants may be able to take proceedings against such importers. The respond- ents for a number of reasons say that they are not entitled or are not willing to give this information and they assert that the appellants have no right to obtain discovery. ‘On 27th June 1967 the appellants wrote a long letter to the respondents setting out their contentions and seeking information in respect of the persons responsible for the importation of this substance. On asth July the respondents replied that they had no authority to give such information. The appellants then issued a writ. They alleged infringement by the respondents and sought wider discovery than they now seek. But they now admit thar they have no cause of action against the respondents. ‘The question therefore now is whether the respondents are in law liable to make discovery of the names of the wrongdoers who imported the patented substance. Graham J* held that they were but his decision was reversed by the Court of Appeal. Discovery as a remedy in equity has a very long history. The chief occasion for its being ordered was to assist a party in an existing litigation. But this was extended at an early date to assist a person who contemplated litigation against the person from whom discovery was sought, if for various reasons it was just and necessary that he should have discovery at that stage. Such discovery might disclose the identity of others who might be joined as defendants with the person from whom discovery was sought. Indeed in some cases it would seem that the main object in seeking discovery was to find the identity of possible other defendants. It is not clear to me whether in all these cases the plaintiff had to undertake in some way to proceed against the person from whom he sought discovery if he found on discovery being ordered that it would suit him better to drop his complaint against that person and concentrate on his cause of action against those whose identity was disclosed by the discovery. But I would think that he was entitled to do this if he chose. But it is argued for the respondents that it was an indispensible condition for the ordering of discovery that the person seeking discovery should have a cause of action against the person from whom it was sought. Otherwise it was said the case would come within the ‘mere witness’ rule. I think that there has been 2 good deal of misunderstanding about this rule. It has been clear at least since the time of Lord Hardwicke that information cannot be obtained by discovery from a person who will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tecum. ‘Whether the reasons justifying that rule are good or bad it is much too late to enquire: the rule is settled. But the foundation of the rule is the assumption that eventually the testimony will be available either in an action already in progress or in an action which will be brought later. It appears to me to have no application to a case like the present case, Here if the information in the possession of the respondents cannot be made available by discovery now, no action can ever be begun because the appellants do not know who are the wrongdoers who have infringed their patent. So the appellants can never get the information. To apply the mere witness rule to a case like this would be to divorce it entirely from its proper sphere. Its purpose is not to prevent but to postpone the recovery x [ig7a] x All ER 972, [1972] Ch 566 2 [1972] 3 All BR 813, (1972] 3 WLR 870948 All England Law Reports [1973] 2 All ER of the information sought. It may sometimes have been misapplied in the past but Isee no reason why we should continue to do so. But that does not mean, as the appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that. So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position, Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference? ‘On the view which I take of the case I need not set out in detail the powers and duties of the respondents with regard to imported goods. From the moment when they enter the port until the time when the consignee obtains clearance and removes the goods, they are under the control of the customs in the sense that the customs authorities can prevent their movement or specify the places where they are to be put, and in the event of their having any suspicions they have full powers to examine or test the goods. When they are satisfied and the appropriate duty has been paid the consignee or his agent is authorised to remove the goods. No doubt the respon- dents are never in possession of the goods, but they do have considerable control of them during the period from entry into the port until removal by the consignee. ‘And the goods cannot get into the hands of the consignee until the respondents have taken a number of steps and have released them. My noble and learned friends, Lord Cross of Chelsea and Lord Kilbrandon, have dealt with the authorities. They are not very satisfactory, not always easy to reconcile and in the end inconclusive. On the whole I think they favour the appellants, and Tam particularly impressed by the views expresed by Lord Romilly MR! and Lord seem to me to point to a very reasonable the person seeking the information ¢ Parca more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make fall disclosure even though the person wronged has no intention of proceeding against him, It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has him- self incurred some minor liability. I would therefore hold that the respondents 3 (1871) LR 12 Eq 140 at 145 2. (1871) 7 Ch App 130 at 133HL Norwich Pharmacal Co v Comrs of Customs (Lord Reid) 949 must disclose the information now sought unless there is some consideration of public policy which prevents that. “Apare from public policy th the respondents say that they are prevented by law from making this disclosure. I agree with your Lordships that that is not so. If it were they could not even disclose such information in a serious criminal case, but their counsel were, quite righty, not prepared to pres their argument oo far a8 that So we have to weigh the requirements of justice to the appellants against the considerations put forward by the respondents as justifying non-disclosure. They are twofold. eee ied lee wy eel cit otis wend oe gk ae or hamper the efficient conduct of their important statutory duties. And secondly it is said that such disclosure would or might be prejudicial to those whose ideritity would be disclosed. There is nothing secret or confidential in the information sought or in the docu- ments which came into the hands of the respondents containing that information. Those documents are ordinary commercial documents which pass through many different hands. But it is said that those who do not wish to have their names dis- closed might concoct false documents and thereby hamper the work of the customs. That would require at least a conspiracy between the foreign consignor and the importer and it seems to me to be in the highest degree improbable. It appears that there are already arrangements in operation by the respondents restricting the disclosure of certain matters if the importers do not wish them to be disclosed. It may be that the knowledge that a court might order discovery in certain cases would cause somewhat greater use to be made of these arrangements. But it was not suggested in argument that that is a matter of any vital importance. The only other point was that such disclosure might cause resentment and impair good relations with other traders: but I-find it impossible to believe that honest traders would resent failure to protect wrongdoers. Protection of traders from having their names disclosed is a more difficult matter. If we could be sure that those whose names are sought are all tortfeasors, they do not deserve any protection. In the present case the possibility that any are not is so remote that I think it can be neglected. ‘The only possible way in which any of these imports could be legitimate and not an infringement would seem to be that someone might have exported some furazolidone from this country and then who- ever owned it abroad might have sent it back 7 Then there would be no infringement. But again that seems most But there may be other cases where there is much more doubt, ‘The validity of the patent may be doubrful and there could well be other doubts. If the respondents have any doubts in any future case about the propriety of making disclosures they are well entitled to require the matter to be submitted to the court at the expense of the person secking the disclosure. The court will then only order discovery if satisfied that there is no substantial chance of injustice being done. I would therefore allow this appeal. The respondents were quite right in re- quiring the matter to be submitted to the court. So they are entitled to their costs down to the date of the judgment of Graham J!, Thereafter the appellants caused much extra expense by putting their case much too high. In the circumstances I would award no costs in the Court of Appeal? or in this House. _ LORD MORRIS OF BORTH-Y-GEST. My Lords, the question which calls for consideration arises in proceedings which by now have shed many of their original features. Two actions were begun. They were later consolidated. The appellants were respectively the registered proprietors of, and the exclusive licensees in the 1 [1972] 1 All ER 972, [1972] Ch 566 2° [1972] 3 All ER 813, (1972] 3 WLR 870950 All England Law Reports [1973] 2 All ER United Kingdom under, letters patent which covered a specific chemical com- pound called furazolidone. The claims made by the appellants in each action were as follows. Firstly, there was a claim for a declaration that the respondents (the commissioners) had infringed or had caused enabled or assisted others to infringe the letters patent. Secondly, there was a claim for a declaration that it was the respondents’ statutory duty to forfeit all the imported furazolidone in their posses- sion custody or contol which wat not licensed for importation by the appellants. ; Thirdly, there was a claim for an order that the respondents should: “@ Set forth and disclose to the [appellants] in the case of each furazolidone imported without the Lkence of che [eppellants] or one or other t them the names and addresses of the consignors and consignees thereof, the quantity of furazolidone therein and the date thereof. “(b) Give the [appellants] full and complete discovery of all documents which ¢ are or have been in their possession custody or control relating to such imported consignments of furazolidone.’ Ic was pleaded that third parties whose names were unknown to the appellants had infringed the letters patent by importing furazolidone without the leave and licence of the appellants. Particulars were given setting out dates, quantities, values and coun- tries from which imported. The claimed was sought in aid of proceedings which the appellants wished to bring against others but which they could not initiate without at least knowing the names of the im After delivery of defences both parties filed lists of documents. In one part of the respondents’ list there were included the following documents: special chemical register; customs entries (comprising forms XSro7-and Cros and supporting docu- ments) delivered by persons other than the appellants relating to the importation of furazolidone: and ships’ reports, cargo manifests, correspondence and books of account relating to such importations. The respondents objected to produce those documents, The objection was on the following grounds: ‘a char the frespondencs] are precluded by lew from disclosing them and “{b) that their disclosure would be injurious to the public interest, because * they contain confidential information about the affairs of persons other than the [appellants] furnished to the [respondents] by such persons pursuant to sections 26, 28 and 29 of the Customs and Excise Act 1952.” ‘The appellants took out a summons by which they ee Senora ae ee ordered to produce the documents for inspection. The summons was adjourned g into court and was heard by Graham ‘Though the learned judge held that the appellants had no reasonable cause of action against the respondents he held in a most careful and illuminating judgment that the court could make an order requiring them to disclose to the appellants the names and addresses of the importers of furazolidone. The respondents appealed to the Court of Appeal? against this order. ‘The appellants persisted in their con- tention that they had causes of action against the respondents and by a respondent's notice they contended (a) that the respondents had infringed (or had caused or en- abled or assisted others to infringe) the letters patent and (b) that the respondents were in breach of a statutory duty to forfeit all imported furazolidone in their possession custody or control which the appellants had not licensed for importation. Having lost in the Court of Appeal? the appellants by leave appealed to this House. 7 ‘Though by their printed case the appellant ns set out that co limited extent they desired to maintain the contention that they had a cause of action for by the respondents themselves, that contention was abandoned when the sppeal 1 [1972] x All BR 972, [1972] Ch 566 2 [1972] 3 All BR 813, [1972] 3 WLR 870> HL Norwich Pharmacal Co v Comrs of Customs (Lord Morris) 951 was opened. The case proceeded therefore on the basis (a) that it consisted solely of a claim for limited discovery against the respondents and (b) that no other relief could be or could have been claimed against the respondents. It must be approached on the footing that it was and always had been an action solely for discovery. The claim is now expressly limited so as to relate only to the names and addresses of any perio appearing from the ensam entry 1 be the importers (a) in the ee of the last importation referred to in para 2 of the amended of breaches in the first action and (b) in the case of each importation referred to in para 2 of the particulars of infringements in the second section. It is important to mention certain matters. (1) The respondents by their plead- ings admitted (for the purposes of this case) the validity of the letters patent. But beyond this there was evidence showing that the validity of the patent (the complete specification of which was published nearly 16 years ago) had never been challenged. Some infringements had been detected and all infringers who had been detected had been sued: the actions had been settled on the basis that there was infringement. (2) The respondents publish certain monthly statistics of goods imported into the United Kingdom and the importation of furazolidone has been specifically mentioned. ‘The appellants are in a position to assert that the persons who have imported, who- ever they are, must have been infringers and therefore wrongdoers. ‘The respon- dents know the names and addresses of these people. The appellants wish to sue such people and intend to sue them if they can find out who they are. The appel- ants say that they are unable to find out who the people are unless the respondents tell them. ‘The appellants wrote (in June and July 1967) to the respondents and asked for the information they sought. The respondents stated that they were advised that information furnished to them under a requirement of the Customs and Excise ‘Act 1952 should not be disclosed to third parties. In my view, it would be reasonable, and in a broad sense of the term just, if the desired information could be supplied. The facts are very special. ‘The appellants are fully entitled to protect their interests. Suibject always to the emergence of some possible explanation of a nature not at present known, the importers whose names are known to the respondents are wrongdoers. It will be unfortunate not only from the point of view of the appellants but also of that of the public if the wrongdoers cannot be challenged. In this situation two questions arise: (1) is it within the power of the court to assist the appellants or is the law powerless? (2) if the court has power to make the desired order—would it be against the public interest to make it? In the review of very many authorities to which we were referred in painstaking and learned arguments it seemed clear that as a broad and general rule it is true to say that a court will not order discovery against a mere witness. On behalf of the appellants it is not sought to challenge this. A witness is one who may be able to give testimony in either pending or anticipated proceedings. Here there are no pending proceedings and unless the appellants secure the help of the court there are no anticipated proceedings. If the names are given and if the appellants take proceedings it is unlikely that there would be any need to rely on any evidence from the respondents, Ie is not suggested that in ordinary circumstances a court would require someone to impart to another some information which he may happen to have and which the latter would wish to have for the purpose of bringing some proceedings. At the very least the person possessing the information would have to have become actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information. In all ordinary circumstances there would then be some proceedings in the course of which the machinery of the court would enable all relevant and admissible evidence to be obtained. ‘My Lords, the review of numerous authorities undertaken by learned counsel