Legal Piracy

This is the final of three posts investigating Privacy law in the UK. The first post examines the development of a law on privacy, its scope and the basic legal theory. The second post looks into the application of the law, focussing on contempt of court, the need for injunctions and their application, including orders contra mundum. It also touches on Parliamentary Privilege. This post will consider the principle of Open Justice, the different types of privacy injunction and the problems that can arise.

Open Justice

[Open justice is] the best security for the pure, impartial, and effective administration of justice, the best means for winning for it public confidence and respect.

– Lord Atkinson, Scott v Scott [1913] AC 417

Open Justice is one of the foundations of the rule of law. The idea is that justice should not only be done, but be seen to be done.  This includes having hearings open to the public and full judgments published. It is important because it enables the public (often through the media) to see justice happening and ensure that it is being done appropriately and correctly.

However, there are obviously circumstances where this is not possible, in particular, where having open hearings, and complete judgments published, would “frustrate the court’s ability to administer justice properly”, by deterring people from bringing matters to the court, or defeating the purpose of the case (as with issues of privacy or confidentiality).

The need for public hearings (including the possible reasons for keeping them in private) are laid out in Part 39.2 of the Civil Procedure Rules. This is also backed up in case law, where it is generally held that derogation from Open Justice can only be granted where necessary (or in some cases, the higher test of “strictly necessary”) – and there are no general exceptions in privacy cases.

On top of the Procedure Rules, and case law, the need for Open Justice is also supported by the Article 6 “right to a fair trial” which has a “strict necessity” test for any private hearings (although only applies to criminal trials), and the Article 10 right to receive and impart information of both the press, the parties involved and the public.

This last right (of the public to receive information) means that even if both parties to a case agree that they want to be anonymised, and the hearing held in private, it is still up to the judge to decide (as happened in JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB), although overturned on appeal, where the court did not grant anonymity, even though both parties agreed to it).

Open Justice is not absolute – there can be cases where hearings are held in private (to allow the parties to speak freely about matters of confidence and privacy), and injunctions can be given that restrict what information can be published about Court proceedings.

The current position seems to be the Courts will try to publish everything. If that is not possible (and would defeat the purpose of a case), they will anonymise the identities of one or more parties, then not include all the details of the case (such as the nature of the information), and finally not issue a judgment, or restrict any reporting on the proceedings. This last step is very rarely taken.

Super-Injunctions

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.

– Report of the Committee on Super-Injunctions

Super-injunctions have various definitions, but for the purposes of this piece, the one given by the Report of the Committee on Super-Injunctions (“the Report”), echoing the definition in Ntuli v Donald [2010] EWCA Civ 1276. Put simply, a super-injunction is an injunction that prevents anyone bound by it from reporting its existence. This also means that any case reported (i.e. with a public judgment) cannot involve an active super-injunction.

The most famous example of a super-injunction is in the Trafigura incident, surrounding the case RJW & SJW v Guardian News and Media Ltd & Persons Unknown), in which a company obtained an injunction (the full text of which can be found here) that not only prevented the Guardian from publishing a confidential report (which was covered by legal privilege) but also:

(i)	the information that the Applicants have obtained an injunction and/or
(ii)	the existence of these proceedings and/or
(iii)	the Applicants’ interest in these proceedings…

This injunction was then broken by Paul Farrell MP in Parliament when he tabled a question identifying effectively Trafigura as RJW – this was accidental as, due to the anonymity granted, Parliament was unaware the case was active and thus that the question broke the sub judice rule. This then meant that the Guardian could have been in breach of the injunction by reporting on Parliamentary proceedings (raising issues of Parliamentary Privilege, discussed previously) and resulted in a follow-up order the next day, making it clear that the injunction did not cover reporting on the proceedings.

Increasingly there has been considerable concern over the number of super-injunctions in force, particularly as – due to their nature – it is hard to get an exact figure. Estimates have varied from only a few to nearly a thousand. However, in its report, the Committee on Super-Injunctions noted that they could only find three granted since the start of 2010.

• In LNS v Persons Unknown [2010] EWHC 119 (QB), John Terry obtained an interim super-injunction, preventing the disclosure of information about a relationship he had. The order was granted at a hearing on the 22nd January, but was lifted on the 29th, when Tugendhat J gave his judgment.
• In DFT v TFD [2010] EWHC 2335 (QB), an interim super-injunction was granted as TFD was allegedly “blackmailing or attempting to blackmail” DFT. The “super-” part was required to prevent anyone ‘tipping off’ TFD as to its existence, enabling her to publish the information before the injunction was served on her. The order was granted on the 9th September but restricted to just an anonymised injunction after 7 days.
• In Donald v Ntuli [2010] EWCA Civ 1276, the Court of Appeal removed a super-injunction placed by the High Court. The parties had been in a relationship and Ntuli was seeking to publish details of it for payment. The Court of Appeal found that the existence of the relationship was not “private information”, merely the details – which could be protected by a standard injunction.

The Missing Super-Injunctions

The problem with super-injunctions is that they are only temporary, but do not always have expiry dates. The theory is that they only last until the case can be brought to trial, but if that never occurs (and the defendant never contests the order), the injunction can remain indefinitely.

In order to prevent this being an issue, the Report recommended that any super-injunction granted in the future have an expiry date (although they noted that super-injunctions are now extremely rare), and that anyone subject to a super-injunction should “raise the issue … with the applicant’s solicitors … [and then] with the court … so that it can review the continuing necessity of such orders.”

It is hoped that super-injunctions will cease to be granted, except in very rare cases (involving ‘tipping off’) where they will be short-lived. Instead the courts should use anonymised injunctions.

Anonymised Injunctions

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

– Report of the Committee on Super-Injunctions

In cases where anonymity or secrecy is required, courts are using anonymised injunctions and anonymity orders to enable them to publish public judgments and orders, while not defeating the purpose of the hearings. These have been around since at least the 1980s, and are most common in the family courts and the Court of Protection (when dealing with wards of court and children). In particular,  the Court of Protection Rules 2007 (passed by Parliament) make proceedings private by default.

In privacy cases these have been increasingly common. The advantage over restricted or super-injunctions are that more details of the matter can be published by the Court (i.e. that it concerns blackmail, or an affair, or financial irregularities). This means that the public can see why Courts are keeping information secret, while the identities of the parties (which are less likely to be of public interest) can be kept secret.

In its recommendations, the Report noted that there had been an increase in the use of anonymity, and suggested that where such orders are given, “the court … should wherever practicable provide a reasoned judgment for its decision”.

Hyper-Injunctions?

There has been much debate over a new kind of injunction; a so-called “hyper-injunctions.” It has been suggested that these are “a new, more powerful, variant of the super-injunction” which prohibit the individual subject to it from discussing the injunction or the proceedings with an MP. They are discussed at some length in the Report, [at 6.9 – 6.22] and its findings are worth noting.

• Nothing a Court can do can interfere with Parliamentary Privilege. Even if a Court wanted to, it could never “restrict, or prohibit, Parliamentary debate or proceedings”.
• A normal injunction prohibiting someone from disclosing information does not need to specify to whom the information cannot be disclosed. Explicitly mentioning MPs does not alter the effect of an injunction.
• There is very little information on the only three cases to have been raised as examples (by an MP with a history of criticising privacy and anonymity in courts); in at least one case, the restriction was a voluntary undertaking, not a Court order

It seems that there is nothing new or interesting about hyper-injunctions (if they exist). Either discussions between MPs and their constituents is covered by Parliamentary Privilege (with or without the “without malice” qualification), in which case no Court order can interfere, or the discussions are not covered, in which case normal Court orders restrict this communication anyway.