Politics & Society

How the injunction became “super”

When the Guardian’s director of editorial legal services, Gillian Phillips, spoke at an industry conference 12 months ago, there were no written judgments on privacy injunctions apart from Terry. Since then the field has developed significantly, giving Phillips plenty to draw on, for a talk about the rise of the “super injunction”, at this year’s IBC Legal Defamation & Privacy event.

They may have first entered British public consciousness when Guardian editor Alan Rusbridger drew attention to “so-called super injunctions” in 2009, but the first order Phillips found in their files that “looked super injunctiony-ish” originated in March 2007. Schillings had served a privacy injunction for Britney Spears, against two newspaper groups.

Britney Spears was probably the start of a gradual change in the way these injunctions were obtained, Phillips said. The next significant one was granted in November 2007 for Northern Rock against the Financial Times.  But there was still no “super” element, ie. a ban preventing reports of its existence.

May 2008 saw an anonymous set of initials, but as far as Phillips could tell it wasn’t a super injunction because it didn’t prevent mention of the order.  However, it was against persons unknown, which became “a bit of a trait” because it meant no one was there to argue the other side.

Phillips’ first anonymous super injunction came about in February 2009,  which included prevention of reporting the proceedings. For legal reasons, she couldn’t say much more.

Then came Trafigura, Terry and many more.  In her overview, Phillips described the basic principle of open justice.

“Every time the court anonymises or holds something in private, makes an order saying you can’t report it, all those things are derogations from that fundamental principle.

“There is no doubt that those derogations can only be made where they’re strictly necessary. For a long time, the courts seem to have forgotten that and the claimants and those representing them seemed to have forgotten that and these things were effectively going through on a rubber stamping exercise.”

Where next? Phillips flagged up Mr Justice Eady’s comments in a speech in November 2009  in which he foresaw the possible development of a general tort of reputation, where the public interest becomes the overall guiding principle and the fact that something is true does not necessarily amount to a defence [PDF link]. “Alarm bells [are] ringing for all of us,” she added.

Looking to Europe, Max Mosley still awaits the judgment on his application for prior notification. A second Von Hannover case is currently going through the European Court of Human Rights, which raises a number of issues about privacy and the relationship with defamation.

The super injunction committee, formed by the Master of the Rolls, and made up of claimant solicitors and in-house media defendants, as well as members of the judiciary and counsel, is in the process of preparing a Report, Guidance and a draft pro-forma order. The body is still meeting, but is hopeful of producing a final report before Easter.

In the meantime there are three “‘super injunction type” cases due before the court of appeal in the next few months, WER, KGM and WXY, which might provide “a bit more light coming out of the tunnel”.

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One Comment

  1. Posted 19Mar11 at 4:45 am | Permalink
    Elaine Decoulos

    Excellent assessment by Gillian of the birth and state of the superinjunction.

    It appears that at the time of the rise of the superinjunction in early 2007, there was also an increasing trend toward secrecy in general in the High Court. It does not seem to be a coincidence that the last public hearing I had in my yet to be resolved libel claim against The Daily Mail, Bruno Schroder and others was in April 2007. Thereafter, all hearings for my LIBEL CLAIM have been held in private. The judgment for this last public hearing, by the then Mr. Justice Gray, was published by The Culture, Media and Sport Select Committee on their website and at the ‘end’ of their report:

    http://www.publications.parliament.uk/pa/cm200809/cmselect/cmcumeds/memo/press/ucps5302.htm

    Prior to this, the court file was subject to a CPR 5.4c order, which effectively sealed the file from third parties. This has apparently become increasingly common and is very worrying indeed for open justice. In the autumn of 2007, a few other libel claims I had, one against The Sunday Times, were also subject to 5.4c orders. This is creeping privacy through the back door.

    As for what grounds my hearings were ordered in private, since the exceptions allowed under CPR 39 did not apply, I once asked Mr. Justice Eady and he said Article 8. I was shocked by this. What about Articles 6 & 10, along with CPR 39? I sought permission to appeal some of these orders and I was dumbstruck by one judgment I received back from Lord Justice Buxton refusing me permission to appeal the striking out of James Harcus in secret, a previous defendant and divorce solicitor.

    His judgment said I should have made an application for the hearing to be held in public! I had to read it a few times to believe it. This is the opposite to what the law says.

    More of a problem than the authorites coming from Article 8 privacy actions, is the law actually being ignored and misapplied in the guise of Article 8. This is repeatedly happening and it appears most superinjunctions fall into this category. They do not appear legal from my reading of the law.

    With regard to Max Mosley, it is ludicrous that he was denied a private hearing in his privacy action, while I have been denied public hearings in my libel action. These orders were made by the same judge, Mr. Justice Eady.

    Is it any surprise that I have yet to get justice for a simple libel over a few previous court orders from a harassment claim emanating out of The Queen’s Bench division itself?

5 Trackbacks

  1. [...] Barca on privacy earlier in the day. Here’s an account I wrote for Index on Censorship, which first appeared here. You can see [my!] tweets from the event [...]

  2. [...] Index on Censorship>> How the injunction became “super” [...]

  3. [...] post originally appeared on the Index on Censorship Free Speech Blog and is reproduced with permission and thanks.  It was also published on Judith Townend’s [...]

  4. [...] super injunction is where its very existence cannot be reported – as in the cases involving Trafigura (2009) and Terry (2010). As media lawyer Mark Thomson explained in a footnote on the Inforrm media law blog last year: [...]

  5. [...] super injunction is where its very existence cannot be reported – as in the cases involving Trafigura (2009) and Terry (2010). As media lawyer Mark Thomson explained in a footnote on the Inforrm media law blog last year: [...]

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