Super-injunctions in English law
Super-injunctions in English law refer to a type of injunction in English tort law that prevent publication of the thing that is in issue and also prevents the reporting of the fact that the injunction exists at all.[1] The term was coined by a Guardian journalist covering the Trafigura controversy. Due to their very nature media organisations are not able to report who has obtained a superinjunction without being in contempt of court.
Terminology
An interim injunction "is an order of a court prohibiting a person from taking a particular action or requiring them to take a particular action before the substantive case or arbitration has been decided".[2]
"Anonymised injunction"
An anonymised injunction is a type of injunction which restrains a person from publishing information concerning an applicant that is said to be confidential or private. An anonymised injunction differs from a super-injunction as it does restrain the publicising or informing of others of the existence of the order and the proceedings.
"Super-injunctions"
The Neuberger Committee notes that the terminology surrounding privacy injunctions has been used imprecisely and the term "super-injunction" has been used to refer to:[3]
- Injunctions that provide anonymity for one or both parties.
- Injunctions that prohibit reporting of the substantive facts and proceedings of a case.
- Injunctions that provide anonymity for one or both parties, prohibit reporting of the substansive facts and proceedings of a case and prohibit access to court files.
The Neuberger Committee adopt the definition that a super-injunction is
an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
"Hyper-injunctions"
The term "hyper-injunction" has been used to describe a type of super-injunction that also forbids a person from discussing the issue in question with journalists, lawyers or Members of Parliament. Such injunctions have been criticised as anti-democratic and the former Liberal Democrat MP John Hemming used Parliamentary privilege to reveal the existence of a hyper-injunction surrounding an allegation that the type of paint used in water tanks on some passenger ships could break down and release toxic chemicals.[4]
Disclosure
There are several ways in which the public can learn of a super-injunction:
| Instance | Example |
|---|---|
| When a judge refuses to continue a super-injunction | In Christopher Hutcheson (previously known as KGM) v News Group Newspapers and Ors[5] an injunction preventing disclosure about a "second family" was initially granted but Eady J refused to continue it.[6] |
| When Parliamentary privilege is used to reveal an injunction | The Liberal Democrat John Hemming used Parliamentary privilege to reveal the Premiership footballer who obtained an injunction in the case CTB v News Group Newspapers. |
| When a super-injunction is breached in contempt of court | The case CTB v Twitter Inc, Persons Unknown involves attempts to sue users who retweeted details of superinjunction obtained in CTB v News Group Newspapers |
| When a super-injunction is reported somewhere outside of the jurisdiction of English courts | In CTB v News Group Newspapers a Scottish newspaper was able to report the identity of the footballer as an injunction had not been obtained from a Scottish court. Scotland has a separate legal system to England and Wales although dicta from the Spycatcher judgment argues the possibility of Scottish newspapers being in contempt of court if they were to breach an 'English' super-injunction. |
| When a person who has taken out a superinjunction volunteers this information | Andrew Marr and anonymous - issued in 2008, its existence was revealed by Andrew Marr in a 2011 interview |
Other known cases
Such injunctions have been known to have been issued in other notable cases:[6]
- John Terry (previously 'LNS') v Persons Unknown
- WER v REW - Relates to an alleged extra-marital relationship
- DFT v TFD
- Ntuli v Donald
- Fred Goodwin v News Group Newspapers Ltd and VBN [2011] EWHC 1437 and MNB v News Group Newspapers
- NMC v Persons Unknown
- ETK v News Group Newspapers Ltd
- RJW & SJW v The Guardian newspaper & Person or Persons Unknown - The Trafigura case
See also
- 2011 British privacy injunctions controversy
- Interdicts in Scots law
- Hyper-injunctions in English law
- Privacy in English law
- Neuberger Committee
References
- ↑ Lowther, Jason, (2011)Q&A Torts 2011-2012, Abingdon: Routledge, p. 171
- ↑ http://www.cliffordchance.com/briefings/2014/07/interim_injunctionsfromthedifccourts.html
- ↑ Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, p.16
- ↑ http://www.telegraph.co.uk/news/uknews/law-and-order/8394566/Hyper-injunction-stops-you-talking-to-MP.html
- ↑ Hutcheson (Formerly Known As "KGM") v News Group Newspapers Ltd & Ors [2011] EWCA Civ 808 (19 July 2011)
- 1 2 Siobhain Butterworth; Maya Wolfe-Robinson. "Superinjunctions, gagging orders and injunctions: the full list". The Guardian.