Last gasp of the super-injunction

Super-injunctions are almost an extinct species. 'Non-super' privacy injunctions however remain alive and kicking with according to recent figures a 100% success rate on interim applications.

The Ministry of Justice has recently published its latest bulletin with statistics on privacy injunction hearings at the High Court and Court of Appeal at the Royal Courts of Justice in London.

The bulletin covers the period January to June 2013 and statistics are now available from August 2011.

Background

From April 2010, a committee chaired by the Master of the Rolls examined legal and procedural issues relating to privacy injunctions (or non-disclosure orders), in the light of concerns about several high-profile cases. The concerns centred around the growth in the use of "super-injunctions" - prohibiting disclosure of the fact of the proceedings or the injunction - and the increasing frequency with which High Court proceedings concerning the misuse of private information were being anonymised.

The Committee published in May 2011 its report "Super-Injunctions, Anonymised Injunctions and Open Justice".

It noted that at that time no statistics on anonymised injunctions and super-injunctions were being collected. One of its recommendations therefore was that the MOJ, with the assistance of HM Courts and Tribunals Service, should collect data about applications for injunctions containing reporting restrictions, including super-injunctions.

The injunctions covered by these statistics are those dealt with in any civil proceedings in the High Court or Court of Appeal at the RCJ in London where the court considers either:

• an application for an injunction prohibiting the publication of what is contended to be private or confidential information; or
• the continuation of such an injunction; or
• an appeal against the grant or refusal of such an injunction.

Specifically, the statistics relate to applications concerned with data protection and rights to respect for private and family life protected by Article 8 of the European Convention on Human Rights (ECHR). Section 12 of the Human Rights Act 1998 is engaged on such an application, meaning that the injunction might, if granted, affect the exercise of the right to freedom of expression contained in Article 10 of the ECHR.

The statistics do not cover injunctions arising from proceedings dealing with family, immigration or asylum issues, those which raise issues of national security or most proceedings dealing with intellectual property and employment issues.

The statistics relate only to those injunctions dealt with at the RCJ in London. The judge in each case determines whether an injunction application has met the criteria for inclusion in these statistics.

The bulletin acknowledges that the statistics are, by necessity, based on the completed forms returned to the MOJ by judges or their clerks and accordingly may constitute an undercount.

The statistics reveal that all 22 applications for new interim privacy injunctions since data has been collected have resulted in an injunction being granted. It appears therefore that the data does not necessarily reflect all of the applications that have been made in the period. The data does not include, for example, the unsuccessful attempt by former England football manager, Steve Mclaren to obtain a non-disclosure order in August 2012 against News Group Newspapers in respect of an article that was to be published the following day.

There is no general exception to the fundamental principle of open justice in respect of hearings and reporting where privacy or confidentiality is in issue. Some form of derogation in respect of the hearing and/or reporting is almost always imposed in applications of this type but the burden of obtaining such measures rests with the applicant and it must be established by clear and cogent evidence. Any derogation from open justice principles must be no more than the minimum that is strictly necessary to ensure that justice is done. 

Key statistics for the period August 2011 to June 2013

Applications for new privacy injunctions

• there have been 22 applications for new interim privacy injunctions;
• an injunction has been granted in each case;
• 4 of the injunctions were granted by consent. In other cases parties may have consented to the injunction in principle but may have resisted particular terms of the order sought, e.g. the derogations from open justice sought by the applicant.
• Of the 22 applications all but 2 involved one or more derogations from open justice in respect of the hearing and/or the proceedings.
• 14 were heard in private, 11 involved party anonymity, 14 restricted access to statements of case by non-parties.
• 1 application resulted in a super-injunction clause being included in an interim injunction (granted in the period Aug-Dec 2011). 

Applications to continue or vary injunctions

• There were 17 hearings concerning the continuation or variation of interim injunctions. In 15 cases the injunction was continued and/or varied. It was discharged in 2.

Applications for final privacy injunctions

• There have been 9 hearings in respect of final privacy injunctions. Final injunctions were granted in all but 1 of the cases.
• Each hearing involved one or more elements of derogation from open justice; all but 1 involved hearings in private, 6 involved anonymity. A super-injunction was granted on a final basis in 1 case (granted in the period Jan to June 2013).
• There was no super-injunction granted on an interim basis in either 2012 or 2013.

Most recent period - January to June 2013

Applications for new privacy injunctions

• There were 6 applications for new interim injunctions.
• 4 were applications on notice, 2 without. Of those that were made on notice, all were resisted – either completely or to some of the terms sought. All 6 applications were granted.
• All 6 new interim injunctions granted during the period January to June 2013 involved derogations from open justice.
• 3 provided for a hearing in private, 3 granted anonymity to one or more of the parties, all placed restrictions on access to the statements of case by non-parties, 5 placed restrictions on the provision of documents to third parties served with the injunction.
• None involved a super-injunction.

Applications to continue or vary injunctions

• There were 2 hearings in which the High Court considered whether to continue or vary an interim injunction. In both cases the injunctions were continued/varied.

Applications for final privacy injunctions

• 1 case in which the High Court considered whether to issue a final permanent injunction. The final injunction was granted and included a super-injunction.
• No proceedings in which the Court of Appeal heard an appeal against a grant or refusal of an interim or final injunction.

Overview

The data covers a period of only 22 months and so it would be unwise to draw too many conclusions about overall trends.

The MOD recognises that the statistics are not complete and do not cover every application which falls within the subject.

It is nonetheless surprising that the figures reveal that every application for a new interim privacy injunction since August 2011 has resulted in an injunction being granted.

That said, it does seem clear that super-injunctions are almost extinct. The last interim super-injunction that was granted was in 2011.

Other derogations from open justice, or combinations of them, are being deployed frequently by the courts. 64% of applications for new interim privacy injunctions were heard in private, party anonymity was ordered in 50% and access to statements of case by non-parties restricted in 86% of cases.

It should be remembered that only the minimum degree of restriction which is necessary to ensure that justice is done should be imposed. This will or should be a matter of argument and challenge on most applications.