Super Injunctions: committee reporting soon

By the end of this month we expect the committee investigating super injunctions to publish its report.

The committee is chaired by the Master of Rolls, Lord Neuberger, who has said in a recent speech that he expects his report to appear before the end of April.

In view of recent press coverage of super injunctions (and even hyper injunctions - see below), it is worth reminding readers that a super injunction is not just an injunction that doesn't tell you who the claimant is.  It is an injunction that prevents any mention of the injunction at all.  It is this element of secrecy that puts super injunctions into a class of their own.  As Lord Neuberger said in his speech last month:

The concern over super injunctions is that they have, as Professor Zuckerman has put it, developed into a form of extremely secret form of procedure. ... English law has not known of such a form of procedure - of secret justice - since 5 July 1641, when the Long Parliament abolished the Court of Star Chamber.

As we noted in a previous blog post, super injunctions are now granted only in the rarest of circumstances, being to all intents and purposes confined to situations where there is evidence to suggest that the defendant, were he to become aware of the injunction before it could be served upon him, would take steps either to avoid service or to frustrate the injunction by publishing the information the claimant is seeking to protect.

Some newspapers have nonetheless suggested that super injunctions are raining down on the British people, thereby eroding the very fabric of free speech.  David Leigh in the Guardian has even suggested that super injunctions are being "controversially extended", referring in support of his claim to the recent decision of Tugendhat J in ZAM v CFW [2011] EWHC 476.

As the Inforrm blog has already pointed out, this is just wrong.  The injunction granted to the claimant in ZAM was not a super injunction at all and there is no evidence that the courts are extending the scope of super injunctions.  The evidence is in fact quite the opposite: the courts are placing restrictions on the use of super injunctions and it seems quite likely that the report of Lord Neuberger's committee will confirm and continue that trend.

Even the usually reliable Financial Times has fallen into error.  Reporting on the revelation by the Lib Dem MP John Hemming that Sir Fred Goodwin, former chief executive of the Royal Bank of Scotland, had obtained an injunction that allegedly stops people describing him as a banker, the FT described super injunctions as "barring newspapers from identifying the applicant".  Yes, super injunctions ban identification of the applicant, but their essential characteristic is that they ban everything else as well.

Mr Hemming has now coined the term "hyper injunction" for an injunction that specifically prevents someone from discussing a case with third parties such as MPs, journalists and lawyers.  In a parliamentary debate on 17 March 2011 he referred to an unnamed case in 2006 in which the court made such an order.  On the face of it, such an order would seem hard to justify if its effect was indeed to prevent a person from telling his MP or his lawyer about a court order.  It is, however, a common feature of injunctions in privacy cases that the defendant and any third party served with the injunction should not reveal the identity of the claimant and/or the allegedly private information to any other third party, though there is invariably an exception for talking to your own lawyer (but not usually your MP).

See further section 10.3 of The Privacy Law Handbook