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20 January 2011
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 rare cases where publication of the order would frustrate its very purpose 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,(1) Justice Sharp also ordered that there be no report of the existence of the proceedings. As she explained, she considered such a provision necessary - at least for a short period - because of the risk that the respondent, who was a suspected blackmailer, might avoid service or try to frustrate an order if she became or was made aware of proceedings.(2) Sharp cited Justice Tugendhat's judgment in Terry v persons unknown, in which he stated that:
"[i]f 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)."(3)
However, Sharp's super-injunction lasted only one week. When the case came back before the judge a week later, as she had ordered that it should do 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, Section 12(3) of the Human Rights Act 1998 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,(4) the judge found this was no longer necessary. The claimant's counsel had argued that if the order were publicised, even if disclosure of the claimant's identity were prohibited, there would be a risk of 'jigsaw' identification: the press would add snippets of identifying information that ultimately, "drip by drip", would lead to the claimant being identifiable.
The court was provided with evidence, which the judge accepted as "concrete", to show that identification through media reporting had occurred in this way in the past. The claimant also argued that no substantial public interest was served by the public availability of the fact of an order if no background information was available.
Sharp 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; Sharp considered the risk of jigsaw identification to be minimal if the other provisions of the order remained in place and the publication of information about the case was restricted to the content of the judgment.
In Ntuli v Donald(5) the Court of Appeal discharged a super-injunction made by Justice Eady. According to the judgment,(6) the only argument advanced on the claimant's behalf at the ex parte hearing before Eady was that a super-injunction was required because the media might otherwise report that a well-known pop singer had obtained an injunction that prevented the publication of salacious material. The Court of Appeal stated that such an argument was unpersuasive because protection against personal identification could be obtained by an anonymity order, without the need to prevent 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 create a greater injustice. He relied on the Supreme Court case of Home Secretary v AP (No 2).(7) The Court of Appeal had no hesitation in distinguishing Donald's case from AP, in which the public interest in open justice gave way to the need to protect AP from the risk of violence. Although Donald was entitled to expect that the court would adopt procedures which ensured that his Article 8 rights were not undermined, there was no need to go so far as to prevent the case from being reported. It was held that there was "nothing in [the court's] judgment that is significantly invasive of... Donald's private or family life". (8)
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