Sunday, 22 May 2011

Lord Neuberger - Superinjunctions and other orders

Lord Neuberger MR
Imagine a conversation between the man in the street – (let’s call him Joe) – and a lawyer – (Silkysmooth).  Joe asks why he cannot know the name of some prominent person (X) who, so it is alleged, has been having an extra-marital affair.  Silkysmooth  responds – “The simple answer is that an order of the High Court – known to lawyers as an “injunction” – prevents publication of the name.”  Joe then asks – “Why have they done this?  Surely, there’s such a thing as free speech.”  Silkysmooth - “Because X has a right, under the European Convention on Human Rights Article 8, to respect for his private and family life, his home and his correspondence – and, for that matter, you have the same right.”  Joe replies – “Maybe, but nobody’s interested in me and I can’t afford to get one of those ... what did you call ‘em ... injunctions!  Anyway, what about free speech.”  “Ah yes, Article 10 of the European Convention, I did my Masters thesis at Oxford on that before coming up to London ....”

Joe, rightly suspecting a lengthy monologue by Silkysmooth, interrupts - “Can an injunction stop MPs discussing something in Parliament?”  “No", replies Silkysmooth, “there is something called Parliamentary privilege.  It’s an old law going back to the 17th century or before and is aimed at protecting the ability of Parliament to debate freely.  However, this privilege has its limits.  For instance, it is unclear whether it fully covers some matters such as conversations between an MP and a constituent.  Also, you could be in breach of an injunction by mentioning it to your MP if the injunction prevents discussion with third parties”   “Well, all this ought to be sorted out, Joe says, “why isn’t it?”  “Because sometimes no case has come up to get a ruling”, replies Silkysmooth.

“My wife told me that the judges have too much power and should not be doing these things – after all they are unelected”, said Joe.  “Well”, replies Silkysmooth - (deliberately ignoring Joe’s technical breach of the hearsay rule) – “It is the elected politicians in Parliament who have let the judges do this, by bringing in the Human Rights Act 1998.  The judges are only protecting the rights of those before the courts and this is all they are doing when they issue a superinjunction.” 

“I’ve heard of one those” Joe intervenes, “are we allowed to know one has been issued and can my MP get to know it exists?”  “You are not allowed to know”, insists Silkysmooth – “but your MP may
be able get to know though he might not be allowed to discuss it in Parliament because of the sub judice rule.”  “What the hell is that – seems a sort of Catch 22”, splutters Joe.  “It’s a rule, made by Parliament itself, to prevent interference by Parliament with actual cases before the courts” “Of course”, continues Silkysmooth, “if Parliament really wanted to discuss the matter there’s nothing the courts could do to stop them.  Nice to have met you but got to dash now!  I’m before Openjustice J in 20 minutes – applying for a superinjunction ....”  

“Hang on”, calls Joe.  “Why is it that only these sportspersons and celebs get this treatment?”  Silkysmooth turns and calls over his shoulder – “You’ve answered your own question old boy.  They’ve got the money and you don’t have it.”  With that, the bewigged figure of Silkysmooth strode away. 

Joes is left pondering.  Open justice!  It would be good to know all that is going on in those courts but I guess that those judges know what they are doing when they say we cannot know.  Would also be good if everything said in Parliament could be reported freely but I guess there will be rules about that as well.  Would I be in trouble if I mentioned that an MP had referred to an injunction?  Must now get back to fitting this bathroom – it is probably more important to someone than all this legal stuff.

Silkysmooth - Barrister at Law
Injunctions, human rights, privacy, free speech, parliamentary privilege, superinjunctions, sub judice, open justice, reporting of proceedings in Parliament.   All those are the ingredients in the present brouhaha over an order by the High Court preventing the naming of a certain person who must be nameless.  The issues are discussed in considerable detail in a report prepared by the Master of the Rolls (Lord Neuberger) and a committee of lawyers.  It is highly informative and a full reading is essential.  The report adopts the term superinjunction, says it has been a rarity and will continue to be so and defines the term.  A new term “Interim Non-Disclosure Orders” also appears.  On this occasion, I will leave it to others to do a more lawyerly analysis.  However, the report, which essentially makes procedural recommendations, seems highly unlikely to satisfy the news-hungry media who are fascinated by the private activities of celebrities.  After all, such stories do sell newspapers!  Furthermore, the report is a long way from an attempt by an “unelected, out of touch and shockingly arrogant” judiciary - (quote from the Daily Mail 21st May) - to gag Parliament.  It is a well written and balanced report but does not get into the substantive question as to whether the courts have got the balance right between rights to privacy and freedom of speech.  That question could not be answered by a committee report and cannot be avoided by Parliament for much longer.

----------- Miscellaneous:


Ntuli vDonald [2010] EWCA Civ 1276

CTB v News Group Newspapers and Imogen Thomas [2011] EWHC 1232 (QB)- this is the case at the centre of this row.  Note that one of the court's concerns was to protect the applicant against a possibility of blackmail - see para. 22 of Eady J's judgment.


Monday 23rd May - The Guardian - Twitter row prompts call for superinjunctions debate in Parliament

"Report of the Neuberger Committee: thorough, thoughtful but not the last word" - Inforrm's Blog
Earlier post - Injunctions and Privacy 
Related topics - Court of Protection ....      Commenting on Family cases
Charon QC - "Postcard from the Staterooms ******* edition"  

Addendum 23rd May:  The Attorney-General announced in the House of Commons that a Joint Committee of Both Houses is to be set up to consider whether changes are needed to the law of privacy injunctions.  BBC News 23rd May.


  1. It's all getting very silly now. While the Daily Mail hasn't actually named him as the footballer in question, two references to him leave very little doubt. And one moderated comment to one story two days ago does name him (in a very simple code). It's given enough information today for a quick google to find the journalist's name.
    All the super injunctions are doing now are bringing the law into disrepute.

  2. One of the old maxims was "Equity does not act in vain." A return to such basic principles might save the courts a lot of embarrassment.

    Some of the media links today (23/5/11) are interesting:

    Daily Mail spotted the fact that two members of Lord Neuberger's committee have connections with firms making money out of injunctions. The Guardian has "Twitter and Wikileaks have made mockery of the courts." Then there is The Independent with the farcical possibility that 30000 Twitter users could face legal action over gag breaches. Regrettably, the law is being brought into disrepute.

  3. The footballer must be very unhappy with Schillings for not anticipating this.

  4. In the USA the first amendment gives almost complete protection to free speech at the expense of privacy. Arnie the Governator just accepted that his peccadillos will be all over the newspapers, so did Tiger Woods. Although I can accept that most ordinary citizens can, in the general course of the lives, expect 'respect for their private and family lives' that surely depends upon them showing some respect for their own privacy and family life. Playing away from home, if I may use that metaphor, with ladies who have anything but private lives, shows little respect for privacy and none for family life. The judges have got this badly wrong.

  5. Gordon Graham of Stockport - quoted in The Guardian 25th May

    • Can it ever be right in a free society that people should be threatened with jail for telling the truth, just because that truth is embarrassing to someone rich and famous? To answer that in the affirmative, as certain judges have done, seems to me to be an arrow through the heart of freedom.

  6. John Hemming MP named a footballer during the Parliamentary debate at which the Attorney General announced that a Parliamentary Committee would be set up to examine privacy law. However, Tungendhat J in the High Court refused to lift the injunction. This is helpfully discussed in an article on Law think - What is the purpose of an injunction?