A Norwich Pharmacal Order (NPO) is typically sought to require a person who has become involved, whether innocently or knowingly, in a third party’s wrongdoing to disclose information necessary to identify or pursue the alleged wrongdoer.
NPOs have traditionally been sought to facilitate the institution or pursuit of legal proceedings. However, the recent High Court (Court) decision in The Chief Inspector of Social Services v Raidió Teilifís Éireann [2026] IEHC 445 demonstrates that the jurisdiction may extend beyond that context and be available in support of regulatory investigations.
Background
In June 2025, Raidió Teilifís Éireann (RTÉ) broadcast a television programme, RTÉ Investigates: Inside Ireland’s Nursing Homes, which included edited undercover footage exposing alleged poor care practices in two Irish nursing homes. This footage appeared to suggest “systemic failures of care”, raising concerns about the safety and welfare of residents.
The applicant, the Chief Inspector of Social Services (Chief Inspector), sought access to the complete unedited footage as part of an investigation into regulatory breaches and to inform the possible exercise of the Chief Inspector’s enforcement powers under the Health Act 2007 (Act). While the Act empowers the Chief Inspector to compel the production of information from registered providers, such as nursing homes, that power does not extend to third parties such as RTÉ. RTÉ declined to release the footage voluntarily, citing journalistic guidelines, confidentiality obligations, and GDPR concerns. As a result, RTÉ made an application for an NPO requiring disclosure of the unedited footage.
RTÉ acknowledged the seriousness of the issues raised and adopted a neutral position on the application, stating that it could only release the footage under a court order.
The Judgment
In considering the application, the Court relied heavily on the Court of Appeal judgment in Blythe v Commissioner of An Garda Síochána [2023] IECA 255 (see our earlier article on Blythe here). Blythe broadly endorsed the threshold conditions (Conditions) that must be satisfied before a NPO is granted, as set out in Collier v Bennett [2020] EWHC 1884 (QB). However, the Court of Appeal in Blythe expressed reservations about the English “good arguable case” standard, preferring a more demanding threshold. It held that an applicant must demonstrate a “strong case” against the alleged wrongdoer, such that the putative claim is likely to succeed at trial.
The Conditions, under Irish law, may be summarised as follows:
- The Arguable Wrong Condition: the applicant must demonstrate that it has a strong case against the alleged wrongdoer;
- The Mixed Up In Condition: the third party, in this case RTÉ, must be sufficiently involved to have facilitated the wrongdoing;
- The Possession/Necessity Condition: the third party must have information or documents necessary to allow the applicant to pursue court proceedings or some other legitimate remedy arising from the alleged wrongdoing, and the applicant has no other practical or appropriate means of obtaining the information; and
- The Overall Justice Condition: this arises only where the other three conditions are satisfied. It requires a court to be satisfied that disclosure is appropriate and proportionate in all the circumstances.
The Court was satisfied that the Conditions were met and granted the NPO. In doing so, the Court developed the NPO jurisdiction in several important respects.
Extension beyond civil proceedings
Traditionally, Irish courts have generally granted NPOs in circumstances connected with the institution or pursuit of legal proceedings. The question of whether the jurisdiction extends to disclosure sought for other purposes remained uncertain. In Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Ltd [2021] IEHC 287, the applicant sought a NPO to identify anonymous Instagram users so that it could consider a “disciplinary or pastoral response”. Simons J expressed reservations about extending the jurisdiction beyond the context of legal proceedings and referred a number of questions to the CJEU. The Court distinguished the present case from Salesian. While the Chief Inspector was not seeking to initiate civil proceedings against the alleged wrongdoer, it was exercising statutory functions designed to protect the welfare and safety of nursing home residents. The Court accepted that seeking disclosure for the purpose of informing potential regulatory investigation and enforcement, where there is a “strong public interest”, constituted a legitimate remedy capable of engaging the NPO jurisdiction.
The “mixed up in” requirement
The Court of Appeal in Blythe expressed the view that a NPO should generally only be made where the respondent had some involvement in the allegedly wrongful transaction, such that, absent such involvement, the transaction would not have taken place in the manner it did.
In this case, RTÉ had not facilitated the alleged wrongdoing in the manner usually associated with NPOs. The Court nevertheless concluded that the requirement was satisfied on the facts. In the Court’s view, RTÉ was more than a mere witness or bystander; it had been “actively engaged, not in the wrongdoing itself but in the investigation, recording and exposure of the wrongdoing”.
The Court described this as an appropriate incremental development of the NPO jurisdiction.
Disclosure beyond identifying the wrongdoer
NPOs are typically sought to identify an unknown wrongdoer. In this case, however, the identity of the nursing homes was already known. The Court had to consider whether disclosure of the complete unedited footage was necessary. Relying on Blythe’s classification of the “missing piece of the jigsaw”, the Court held that, exceptionally, additional information over and above the identity of the wrongdoer may be ordered. In this case, the Court held that disclosure of the full unedited footage was necessary not only to assist the Chief Inspector in confirming the extent of the alleged wrongdoing and determining an appropriate regulatory response, but it might also demonstrate that certain incidents were less serious than they appeared in the edited broadcast, thereby preventing inappropriate enforcement action.
Privacy and data protection
The Court accepted that the footage contained personal data and special category data relating to nursing home residents. It found that the Chief Inspector had a lawful basis under the GDPR and the Data Protection Act 2018 to process the information in the exercise of its statutory functions. The Court was satisfied that the terms of the draft NPO adequately protected the privacy and dignity of residents. Balancing the rights of the alleged wrongdoers against the public interest in the regulatory investigation, the Court concluded that the urgent need for the regulatory investigation overrode their rights.
Key Takeaways
The Court emphasised that its judgment should not be viewed as authority for any broader proposition that material gathered by media organisations will routinely be subject to an NPO. This case turned on its own particular facts, and did not engage arguments around journalistic privilege, freedom of expression or access to journalistic sources.
However, the judgment demonstrates the Irish courts’ willingness to continue the incremental development of the NPO jurisdiction. In particular, it confirms that the jurisdiction is not necessarily confined to cases involving contemplated legal proceedings, and may, in appropriate circumstances, extend to regulatory investigations and enforcement. It also suggests that active involvement in investigating, recording and exposing alleged wrongdoing may satisfy the “mixed up in” condition, even where the respondent did not facilitate the wrongdoing itself. Finally, the judgment provides guidance on the exceptional basis on which disclosure may be ordered not only to identify a wrongdoer but also to obtain a “missing piece of the jigsaw” to pursue a legitimate remedy.
If you would like to discuss the judgment in more detail, or NPO jurisdiction generally, get in touch with Paul Convery or Adele Hall. For healthcare and regulatory investigations queries, please contact Margaret Muldowney.
Contributed by Gail Nohilly & Lucy Brady
