THE WELLCOME FOUNDATION LTD. v. ATTORNEY GENERAL

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. This is an application by the Attorney General for leave to appeal to Her Majesty in Council the judgment given by this Court on 30th October this year. Although it is a final judgment leave can only be granted if the question involved, which relates to discovery on the Norwich Pharmacal principles, is one of great general or public importance or otherwise to be submitted for decision because the question itself cannot be usefully estimated in monetary terms.

The actual question is not set out in the notice of motion nor does it appear in the affidavit in support. After some discussion it is now formulated in these words: "Before the Court exercises a discretion to grant a Norwich Pharmacal order is it a requirement that there is proof of the following criteria, namely the commission of a tort by a third party and the facilitation by the respondent sufficient to give the respondent knowledge of the identity of the tortfeasor and the activity constituting a tort, and what is the standard of proof required?" It is formulated by Mr. Rogers for the Attorney General in that way because, as I understand him, he is concerned to establish whether there is or is not what he calls a "threshold test"; and he is moved to this end because government departments are concerned that there are one or perhaps more applications of a similar nature in the pipeline. For my part the government departments concerned are adequately met by the advice given by their Lordships in the Norwich Pharmacal case itself, i.e. when in doubt they should seek the advice of the court which will exercise its discretion in accordance with the comments of their various Lordships.

2. For my part I am not persuaded that the question is one with which their Lordships should be further troubled. I would refuse leave.

Kempster, J.A.:

3. I too would refuse leave on the grounds indicated by my Lord.

Litton, J.A.:

I concur.