The super injunction

Illustration: Michael Schofield (Click to enlarge)

— By Barry Turner, senior lecturer in media law at the University of Lincoln

The media has in recent weeks complained of a use of injunctions to not only to prevent publication of controversial stories but to stifle the very discussion of the injunction itself.

This has finally come to a head after such a gagging order was sought to save a premiership footballer from embarrasing revelations in the tabloid press. Justice Minister Jack Straw has finally decided that it is time for parliament to intervene in this gross abuse of legal process.

Applications made to the courts by zealous and perceived powerful defamation and ‘privacy’ lawyers have been granted by judges who seem to have forgotten the very nature of the relationship between the press and the courts and who have more disturbingly forgotten that an injunction is an equitable remedy and not a legal right.

The recent action against the Guardian to stifle stories about an oil company went to extraordinary lengths which went well beyond any idea of protecting the applicant’s privacy and equitable interests.

The lawyers for the claimant were not only seeking to prevent adverse commentaries on the company’s activities but sought to injunct any kind of debate about including apparently debate in parliament.

Such an application defies credibility and represents arrogance on the part of the applicant and their lawyers.  The more remarkable feature of these applications is that they are given any credibility at all.

The injunction is a well established and commonly used legal tool to prevent an individual suffering a wrong and to prevent a wrongdoer form evading responsibilities.  Properly used in the spirit of the English legal system’s concept of equity it is a remedy to be applauded.  When used in less than good faith it represents a fundamental threat to freedom of expression that should not be tolerated in a pluralist democracy.

The injunction is an equitable remedy.  Equity is a cornerstone of English law enabling judges to apply the law in a fair and ‘equitable’ manner.  It is a centuries old tradition that has served those who seek redress in the courts well.  The reason it is such an invaluable tool is because it is discretionary and need not slavishly follow the more rigid legal rules that apply in our legal system.  The super injunction as it has come to be known is in clear violation of the spirit of equity and of judicial discretion.

The nature of the super injunction attempts to entirely stifle debate by acting not only in the individual journalist, newspaper or broadcaster but purports to silence the World, expanding its scope to all who may wish to comment of the issues injuncted.

But Equity is a right in personam, an equitable remedy cannot bind the World an can only be directed at individuals who by their acts may be committing a tort.  A judge granting a super injunction against all and sundry is breaking the rules of equity themselves.  The House of Lords in American Cyanamid v Ethicon made clear that the injunction as an equitable remedy can only be used where there is a cause of action, a triable case.  In another pivotal decision on injunctions the former master of the Rolls Sir John Donaldson declared that the court may disregard fanciful claims. A claim that a national newspaper may not discuss questions in parliament regarding and injunction is about as fanciful as it gets.

The rules of equity in the main mitigate against the granting of injunctions.  Great drafts of the common law on both equity and freedom of expression urge caution on judges before granting an injunction.

The super injunction is an invention of imaginative lawyers and judges who have forgotten the very basics of the law of equity.  Very sadly the myth is perpetuated by imaginative journalists who chose to use the expression without simultaneously dismissing it as a fallacy.

Super injunctions were they to exist would defy legal maxims enshrined since time immemorial (natural justice).

Super injunctions deny the supremacy of parliament.  They deny the authority of statute and treaty (ECHR Art.10 Human Rights Act 1998 s.12) they defy absolute privilege, they abuse the purpose of the sub judice rule, they are an abuse of the legal process, they are contemptuous of parliament.

They are unlawful! It is time parliament made them so once and for all.

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