Super Injunction

5 Key excerpts on "Super Injunction"

• 

  eBook - ePub

  Equity and Trusts

  A Problem-Based Approach

  • Judith Riches(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Mail on Sunday . The newspaper intended to run a defence of justification.

  Dismissing the appeal, the Court of Appeal held that until trial, when all the evidence would be considered, a court could not make the assumption that a defence of justification would not succeed. To prevent publication of defamatory material prior to the trial, on inadequate evidence and on the ground that the newspaper might not be able to prove its case, would seriously erode the right of freedom of expression under s 12 of the Human Rights Act 1998. Furthermore, a judge must not usurp the constitutional function of the jury to decide the matter.

  This rule that the court will not restrain the publication of an allegedly defamatory statement if the defendant intends to prove that the statement is true (i.e. the defence of justification) is known as the rule in Bonnard v Perryman .22

  Super-Injunctions

  You may have heard of super-injunctions. They were in the news around 2010, following the John Terry 23 case.

  A super-injunction is an interim injunction which restrains a person from (a) publishing information which concerns the applicant and is said to be confidential or private; and (b) publicising or informing others of the existence of the injunction and the proceedings.

  There was general concern at the increased use of these super-injunctions and a Committee on Super-Injunctions was set up in April 2010 chaired by Lord Neuberger, Master of the Rolls, which made recommendations, notably that as super-injunctions constitute derogation from open justice, they should only be granted when they are strictly necessary to secure the proper administration of justice.

  Case Study – Four

  For legal reasons, I will refer to the defendant as Akio or the Japanese gentleman. Never trust a man with small hands, I have since been told, and Akio had exceptionally small hands.

  I met him three times before we made the contract, and on each occasion he was accompanied by Daiki. A friend, Akio said, and, if appearances were anything to go by, it would be safer to have Daiki as a friend than an enemy.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Media Law and Ethics in the 21st Century

  Protecting Free Expression and Curbing Abuses

  • James Lewis, Paul Crick, James Lewis, Paul Crick(Authors)
  • 2014(Publication Date)
  • Hart Publishing

    (Publisher)

  It was suggested, for example, that the claimants or the judge had sought to restrain by injunction either what was said in Parliament, or media reports of it, or both. This was not true. There had been some debate in solicitors’ correspondence as to a lack of clarity about privilege attaching to reports under the Parliamentary Papers Act 1840. 72 That is all. This lack of clarity was referred to also by the Master of the Rolls before issuing his ‘Practice Guidance’ in 2011. But it is all rather beside the point when it comes to addressing the merits of ‘super-injunctions’. They were granted very rarely even in the context of privacy cases. Sometimes, a claimant will have become aware that personal information is about to be published in a newspaper, or is being blackmailed by someone Privacy: A Judicial Perspective 29 69 It has long been recognised that it may sometimes be necessary to grant anonymity to a party seeking to protect confidential information. Otherwise, the injunction may be rendered ineffective: see e.g. JIH v News Group Newspapers Ltd [2011] EWCA Civ 42. 70 One example is to be found in the original order of Hoffmann J in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 5. 71 RJW and SJW v Guardian News & Media Ltd [2009] EWHC 2540 (QB). 72 See the Government’s Consultation Paper, Parliamentary Privilege (Cm 8318) at [70]–[77]. who has come into possession of such material. If an injunction is to be effective in such circumstances, it may be necessary to prevent the suspected culprit from passing on the information before the order is served. If that happens, he or she may well be able to argue that the injunc-tion was served too late and thus escape any potential liability for contempt of court. That is why it may be necessary to prevent his being ‘tipped off’ before service. 73 Another example of such an order occurred in the case of the couple, David and Judith Tebbutt, who were being held captive by Somali pirates in 2011.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Law of Confidentiality

  A Restatement

  • Paul Stanley KC(Author)
  • 2008(Publication Date)
  • Hart Publishing

    (Publisher)

  34 Outside the established area of the court’s supervisory jurisdiction to protect the vulnerable, the injunction contra mundum is an innovation in search of a fully coherent principle or rationale. 35 The Effect of Final Injunctions 121 30 See Attorney-General v Newspaper Publishing plc [1988] Ch 333 (CA), 369 (Donaldson MR). 31 Re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422. 32 See the useful historical survey by Munby J in Kelly v British Broadcasting Corp [2001] Fam 59, 73–5. That the injunction was, in the mid-1990s, regarded as rooted in the court’s power to safe-guard those of whom it was exercising supervisory jurisdiction was made clear in R v Central Independent Television plc [1994] Fam 192. 33 Venables v News Group Newspapers Ltd [2001] Fam 430; X ( a woman formerly known as Mary Bell ) v News Group Newspapers Ltd [2003] EWHC 1101, [2003] EMLR 37; Carr v News Group Newspapers Ltd [2005] EWHC 971; Re KT [2005] EWHC 3428 (Fam). 34 Jockey Club v Buffham [2002] EWHC 1866 (QB), [2003] QB 462, [26] (Gray J). 35 In ibid , [26], Gray J described it as an exercise of the court’s ‘prerogative jurisdiction’. It is not clear what he had in mind; with respect, the label ‘prerogative’ seems to serve simply to identify the jurisdiction as existing without any coherent statutory basis or warrant in common law precedent. § 22 Interim Injunctions (1) An interim injunction may be granted to restrain conduct that the claimant alleges would be a misuse of protected information if it is in the interests of justice to do so. (2) Where the defendant relies on a right of freedom of expression, no interim injunction will be granted unless the court is satisfied that the claimant is likely to establish at trial that publication should not be allowed. THE GENERAL POSITION I N THE COURSE of the Spycatcher saga, Sir John Donaldson MR vividly explained the importance of interim injunctions in confidentiality cases: Confidential information is like an ice cube.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  National Security and the D-Notice System

  • Pauline Sadler(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  7

  Injunctions to Restrain a Breach of the Criminal Law -U.K. and Australia

  From the government point of view the most desirable outcome would be to prevent sensitive information from being published at all, and injunctive relief, as a legally enforceable remedy, would be the best way in which to achieve this end. It goes without saying that the extra-legal D-Notice system would also serve to suppress the information but, because the system is voluntary and the government cannot enforce any decisions not to publish, it is not as reliable as an injunction. The question arises as to why the two governments have not sought to restrain by injunction breaches of the respective official secrets legislation in their countries. The answer is that injunctions, a civil remedy, are riot readily granted by the courts to restrain criminal acts (Aronson and Dyer, 1996; Author not identified, undated; Attorney-General’s Department, 1994; The Law Reform Commission (Australia), 1985).

  There is, nonetheless, a long line of cases where injunctions have been granted to restrain a breach of the criminal law. The procedure usually relates to a statutory offence, although it was first used in cases of public nuisance. For example in the case of The Mayor and Commonalty and Citizens of the City of London v Bolt (1799) 5 Ves. Jun. 129, an injunction (based on public nuisance) was granted by Lord Chancellor Loughborough to prevent the use of ramshackle old houses in London as temporary warehouses for the storage of sugar, which made the buildings dangerous to the public. In A-G v Cleaver (1811) 18 Ves. Jun. 212 Lord Chancellor Eldon, while admitting jurisdiction, stood over for trial by jury on the issue of fact an application by the A-G at the relation of individuals for an injunction (based on public nuisance) to prevent the defendants from continuing their manufacture of soap and soap by products in Battersea. In Crowder v Tinkler (1816) 19 Ves. Jun. 618, Lord Chancellor Eldon granted an injunction limiting the amount of gunpowder the defendant could store in a newly built corning-mill until trial at the next Assizes of the issue of whether the corning-mill amounted to a public nuisance. It is clear from the terminology in these three cases on nuisance that the action was being dealt with as a criminal rather than a civil matter. Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435, without citing, any authorities, makes reference to this historical usage. In Cooper v Whittingham (1880) 15 Ch 501, the plaintiffs were granted an ex parte injunction, based on s17 (breach of which was an offence) of the Copyright Act

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Trade Secrets and Employee Mobility: Volume 44

  In Search of an Equilibrium

  • Magdalena Kolasa(Author)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  2 Scope of Prohibited Acts The US courts have wide discretion in framing an injunction. The principles governing this freedom are, on the one hand, the necessity to formulate the order in a manner sufficiently clear for the defendant to know what he is and is not allowed to do. On the other hand, the courts must make sure that the injunction does not entirely take away the defendant’s ability to engage in fair competition with his former employer. 155 The balancing of the interests of the holder of the secret information, the former employee and the public serves as an aid in framing an appropriate injunction. 156 The scope of the injunction depends on the facts of the case. Factors to be borne in mind when framing an injunctive order include the extent to which the defendant is in possession of the information, the nature of the information, which influences how it may be defined in the order, 157 the harm to the defendant which might be caused by an overly broad injunc- tion, the risk of circumventing the order if it is drafted too narrowly and the type of infringement (in particular the likelihood that the former employee will try to evade the order, if he has already shown intent to harm the former employer). 158 The prohibition may cover disclosure or use of the information. In states which apply the doctrine of inevitable disclosure, an injunction may restrict the former employee from undertaking new employment, even though no agreement to that effect has been concluded. 159 More- over, orders prohibiting solicitation of customers or accepting business from the former employer’s clients may be issued. 160 Generally, the prohibition of use relates to the secret information in question (‘use injunction’). However, where the information is inextric- ably connected to the defendant’s process or product, the court may issue an injunction prohibiting the manufacturing of the product (‘pro- duction injunction’).

  Sign up to read

  Learn more about book