There are people out there who work very hard to separate you from your money and some of them are very successful at what they do. 

There have been a number of recent examples of “phishing” and “vishing” scams that have targeted organizations and resulted in the disclosure of their files. 

One of the more common scams involves tricking the victim into changing direct-deposit account information for their vendor to a new account provided by the perpetrator. These can be very convincing and can happen to anyone.

Normally, litigation gives you tools to obtain documents and information from the other side. The problem is that those tools are not much help when you do not yet know who the other side is.

That is where a Norwich order can be useful. 

A Norwich order is not an invitation to go fishing. It is an extraordinary remedy because it requires an innocent third party to disclose information.

A Norwich order is a court order requiring a third party to provide information needed to identify a potential wrongdoer or allow a claim to be pursued.  The remedy developed because, in some circumstances, it would be unfair for critical information to remain inaccessible simply because it happens to be in the hands of someone who is not the proposed defendant. In Canada, Norwich relief exists alongside the ordinary rules of civil procedure. 

A Norwich order can be used to compel a financial institution to disclose the identity of an account holder or other information critical to tracing the funds that have been mis-directed. 

Courts do not generally allow someone to obtain another person's confidential information simply to find out whether there might be a lawsuit worth pursuing. There must be a bona fide basis for the proposed claim, the information sought must be genuinely necessary, and the court will consider whether it can reasonably be obtained somewhere else. Privacy, confidentiality, proportionality and the burden placed on the third party also matter.

In practical terms, that means the request should be focused. What information is missing? Who has it? Why is it necessary? Why can't you get it another way? What are you going to do with it, and how will obtaining it allow a legitimate claim to move forward?

For businesses dealing with fraud, anonymous misconduct or other situations where the evidentiary trail seems to stop with a third party, those questions are worth asking early.

Sometimes the problem is not that you do not have a claim. It is that you do not yet know who to bring it against. A Norwich order can help provide information about where the funds were deposited, who opened the account, and whether the funds were subsequently directed elsewhere. 

An application for a Norwich Order is one of the tools at your disposal when developing a strategy to recover mis-directed funds. 

Craig Alcock is a commercial litigator who advises businesses on complex disputes, risk management, and efficient dispute resolution strategies focused on achieving practical outcomes.