Equitable Expansion: Photographic Identification in Norwich Pharmacal and Bankers’ Trust Orders

Introduction

In Boulbet v SumUp Ltd ([2025] IEHC 285), Mr. Justice Nolan of the High Court of Ireland confronted an application by a defrauded investor to compel SumUp, a digital bank operating in Ireland, to disclose not only transactional data and account-holder details but also the photographic identity documents used to open certain accounts. The plaintiff, a retired French national, alleged he lost over €1.5 million in a sophisticated cross-border investment scam. Having identified only the bank accounts through which funds were dissipated, he invoked the court’s equitable jurisdiction to obtain what are known as Norwich Pharmacal Orders and Bankers’ Trust Orders. At issue was whether those remedies could be extended to include photo-bearing identity documents—a matter of first impression in Ireland.

This commentary examines the factual matrix, the court’s reasoning, the precedents relied upon, and the wider implications of this decision for future disclosure applications in fraud tracing and asset-recovery proceedings.

Summary of the Judgment

The High Court granted the plaintiff’s application in full. It ordered SumUp to produce:

The names, addresses, dates of birth, email addresses and telephone numbers of the persons who opened the relevant accounts and any beneficiaries.
Details of all credit and debit transactions to and from those accounts, including the identities of mandators and recipients.
Photo-bearing identity documents (e.g. passport, EU national ID card or driving licence) used to open those accounts.

The court held that both Norwich Pharmacal and Bankers’ Trust jurisdictions—the former aimed at identifying wrongdoers, the latter at tracing assets—could properly extend to identification documents containing photographs. It found that such documentation was “necessary for bringing a claim” and “may realistically assist in locating or preserving the plaintiff’s assets.” The court balanced the plaintiff’s strong interest in disclosure against privacy and confidentiality concerns, concluding that disclosure was “just and convenient” in the context of cyber-enabled fraud.

Analysis

1. Precedents Cited

Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133: Established the equitable Norwich Pharmacal Order (NPO) to compel disclosure of identifying information where a third party is innocently involved in wrongdoing by others.
Megaleasing UK Ltd. v Barrett [1993] ILRM 497: Irish authority approving Norwich Pharmacal orders.
Blythe v Commissioner of An Garda Síochána [2023] IECA 255: Clarified the requirements for NPOs in Ireland, emphasizing (a) a strong prima facie case, (b) defendant involvement, (c) necessity of information, (d) alternative means exhausted, (e) balancing of interests, and (f) duty of candour and undertakings.
Bankers Trust Co. v Shapira [1980] 1 WLR 1274: English authority creating the Bankers’ Trust Order, enabling a defrauded plaintiff-bank to discover third-party documents where funds had been misappropriated.
Kyriakou v Christie, Manson & Woods Ltd [2017] EWHC 487 (QB): Identified the criteria for Bankers’ Trust Orders: good grounds that the asset is claimant’s; real prospect of tracing; narrow scope; balancing claimant’s interests against respondent’s confidentiality; appropriate undertakings.
ESB v Richmond Homes [2023] IEHC 571: Irish High Court recognition that discovery remedies might extend beyond wrongdoer identities to broader documentation consistent with equitable principles.
Aoot Kalmeft v Denton Wilde Sapte [2002] 1 Lloyd’s Rep 417: Emphasized a realistic approach to fraud investigation and the need to piece together fragmented information.
Larkins v National Union of Mineworkers [1985] IR 671: Early Irish case granting inspection of bankers’ books under equitable jurisdiction.
ACC Loan Management v Rickard [2019] IESC 29: Supreme Court endorsement of incremental development in equitable remedies to achieve justice.

2. Legal Reasoning

The judge recognized two distinct equitable jurisdictions:

Norwich Pharmacal Orders: Designed to identify unknown tortfeasors by compelling an innocent third party—here, the bank—to disclose information necessary for initiating claims. Applying Blythe, the court confirmed all the NPO pre-requisites were satisfied: a strong prima facie fraud case, the bank’s involvement in processing transactions, necessity of the information, absence of alternative sources, and the balance of interests in favour of disclosure.
Bankers’ Trust Orders: Originating in Bankers Trust, these orders allow a claimant with an equitable or proprietary interest in misappropriated funds to trace assets and obtain discovery of related documents. The Kyriakou criteria were met: evidence that the misappropriated money passed through SumUp accounts, a real prospect that photo-ID would assist tracing, and proportionality in restricting the order to photo-bearing documents.

In reconciling the two jurisdictions, the court endorsed the view (expressed in Richmond Homes) that equitable remedies should evolve incrementally to address modern forms of wrongdoing—particularly cyber fraud. The judge stressed that photographic identification is qualitatively different from narrative account summaries: a photograph may directly identify perpetrators and facilitate cross-border enforcement.

On privacy and confidentiality, the court held these concerns are outweighed by the plaintiff’s right to an effective remedy under both domestic equity and Article 6 of the European Convention on Human Rights. The requirement of strict undertakings by the plaintiff further protected account-holder data against misuse.

3. Impact

This decision marks a significant development in Irish disclosure jurisprudence:

It confirms that Norwich Pharmacal and Bankers’ Trust jurisdictions may be extended to include photo-bearing identity documents.
It signals judicial willingness to adapt equitable remedies to the realities of digital and cross-border fraud.
It provides a roadmap for future claimants seeking to pierce the anonymity of online scammers by securing more granular personal data from banks and intermediaries.
It underscores the importance of balancing data protection obligations against the right to an effective judicial remedy, with undertakings as a key safeguard.
It may encourage financial institutions to revisit their compliance and disclosure policies when faced with Norwich Pharmacal and Bankers’ Trust applications.

Complex Concepts Simplified

Norwich Pharmacal Order (NPO): An equitable remedy compelling an innocent third party to disclose information it holds, so a claimant can identify and sue unknown wrongdoers. Think of it as “pointing the finger” at the wrong person by obtaining the clue from a bystander who knows more than they need to.
Bankers’ Trust Order: Another equitable remedy allowing a claimant with a proprietary or equitable interest in misappropriated funds to trace and recover those funds by obtaining discovery from a third-party bank. It is more focused on following “where the money went” rather than just naming who did it.
Equitable Jurisdiction: A body of judge-made law that supplements the strict rules of common law, allowing courts to do “what is fair and just” in individual cases—especially where rigid legal rules may defeat justice.

Conclusion

Boulbet v SumUp Ltd constitutes a landmark in Irish equity. By authorising disclosure of photo-bearing ID under both Norwich Pharmacal and Bankers’ Trust frameworks, the High Court has charted a path for effective asset tracing in the digital era. This incremental expansion of equitable remedies reflects the courts’ commitment to adapt to evolving forms of fraud while upholding data privacy through stringent undertakings. Future plaintiffs and advisors will now have clearer guidance when seeking the “missing picture” needed to unmask anonymous wrongdoers and recover lost assets.