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Super-injunctions - an update

14 January 2011. Published by Keith Mathieson, Partner

Super-injunctions are injunctions that prevent publication of the fact that the court has made an injunction.

It is now clear that they will be granted only in those rare cases where publication of the order would frustrate the very purpose of the order or where there is some other unusual and compelling reason.

When ordering an injunction to restrain a misuse of private information in DFT v TFD, discussed here, Sharp J also ordered that there should be no report of the existence of the proceedings themselves, i.e. she made a super-injunction.  As she explained at paragraph 10 of her judgment, she considered such a provision necessary – at least for a short period – because of the risk that the respondent, being a suspected blackmailer, might avoid service or try to frustrate any order if she found out or was tipped off about it.  She cited the judgment of Tugendhat J in Terry v Persons Unknown and in particular paragraph 139 in which he said:

If a prohibition of the disclosure of the making of the injunction is included in an order for the purpose of preventing tipping off, and if the order provides for a return date (as the Practice Direction envisages) then the prohibition on disclosure may normally be expected to expire once the alleged wrongdoer has been served with an injunction, or at the return date (whichever is earlier).

Sharp J's super-injunction was, however, to last only a week.  When the case came back before the judge a week later (the judge having ordered that the case should come back before her once the respondent had been given notice), the respondent had been served with the order.  Although the respondent denied that she was a blackmailer, she had consented to the continuation of the injunction until trial or further order for what were described by her Counsel as 'pragmatic reasons'.  The judge nonetheless held that despite the respondent's consent, s 12(3) of the Human Rights Act 1998 still required the court to satisfy itself that the order should be continued.

In relation to the provision that prohibited publication of the fact of the order (Sharp J avoided the use of the term 'super-injunction'), the judge found this was no longer necessary.  It had been argued by the claimant's Counsel that if the order were to be publicised, even if disclosure of the claimant's identity was prohibited, there was a risk of "jigsaw" identification on the basis that the press would add snippets of identifying information that would, 'drip by drip', ultimately lead to the claimant being identifiable.  The court was indeed provided with evidence, which the judge accepted as 'concrete', to show this had happened in the past.  The claimant also argued that there was no substantial public interest served by the public availability of the fact of an order without any background information.

Sharp J held that when assessing whether a restriction on open justice was needed, the court had to consider the need for each restriction in the context of the protection that might be given by any other terms of the order.  In this case, having regard to the protection conferred by the order for anonymity of the parties, it was unnecessary to impose a further restriction on mentioning the proceedings.  The court had to take a realistic view and in the judge's view, the risk of jigsaw identification was minimal if the other provisions of the order remained in place and the publication of information about the case was restricted to what was contained in the judgment.

In Ntuli v Donald the Court of Appeal discharged a super-injunction made by Eady J.  According to the judgment at [46] the only argument advanced on the claimant’s behalf at the ex parte hearing before Eady J was that a super-injunction was required because the media might otherwise report that a well-known pop singer had obtained an injunction which prevented the publication of salacious material.  The Court of Appeal said such an argument was unpersuasive because protection against personal identification could be obtained by an anonymity order without the need to prevent any mention of the fact that an injunction had been obtained.

Before the Court of Appeal Mr Donald argued that the circumstances of his case were such that to insist on open justice would itself create a greater injustice.  He relied on the Supreme Court case of Home Secretary v AP (No. 2) [2010] UKSC 26.  The Court of Appeal had no hesitation about distinguishing Mr Donald’s case from AP, where the public interest in open justice gave way to the need to protect AP from the risk of violence.  While Mr Donald was entitled to expect that the court would adopt procedures which ensure that his Article 8 rights are not undermined, there was no need to go so far as to prevent the case being reported: “There is nothing in [the court’s] judgment that is significantly invasive of Mr Donald’s private or family life” (Kay LJ at [54]).

See further section 10.3 of The Privacy Law Handbook