It appears that the concept of “super injunction” is spreading round the United Kingdom.  Last week we reported on Van Morrison’s application for such an order in Northern Ireland – this failed, although he did obtain a “privacy injunction”.  This week the Scottish website “allmediascotland” reports that the “Sunday Herald” newspaper has successfully resisted an application for a “super-injunction” brought by Strathclyde University and its principal Professor James R McDonald.  After a hearing last week, Court of Session judge Lord Pentland dismissed the orders sought as being “unnecessary restrictions on responsible journalism“.

The application concerned a story that a retired academic, Gavin Simpson and his wife Anne had been given formal warnings by the Procurator Fiscal after it was found that they had made allegations against Professor McDonald.  The couple were charged with extortion in December 2009 last year, after threatening to make the allegations public but ultimately were given a formal warning.

The Sunday Herald had agreed a form of words for the story with the University and Professor McDonald but nevertheless found itself faced with an application for an injunction (under Scots law an “interdict”) which would have banned future publication of anything in the story or an undertaking obliging the newspaper to give it a week’s advance notice of its intention to publish such material.  The claimants argued that that without such an order or undertaking there would be a “creeping erosion” of Professor McDonald’s reputation.  The precise legal basis for the order applied for is difficult to discern from the brief reports, although we assume that the claim was “privacy” based.

Sunday Herald editor Richard Walker said Lord Pentland’s decision was an “important victory” for press freedom and a welcome departure from recent decisions in England, where super-injunctions were becoming more common.  The story which was eventually published by the newspaper, on 3 October 2010, can be found here (although the online version does not have the story of the unsuccessful injunction application).

Blogger Jon Slattery discusses the case and it is reported by PA Media Lawyer whose editor, Mike Dodd, has confirmed the details of the story and spoken to the Sunday Herald’s solicitor advocate, Tony Jones, of the law firm BTO.

The Glasgow-based Sunday Herald newspaper beat off an application by
Strathclyde University and its principal for an injunction which would
have banned it from reporting a story – and banned reporting of the fact
that there had even been a court hearing about the order.The application was made by Strathclyde in an attempt to stop the
newspaper reporting that a retired academic and a university
administrator had been given formal warnings by the procurator Fiscal
after it was found that they had made – originally anonymously –
allegations against university principal Professor James R McDonald.The pair, retired academic Gavin Simpson and his wife Anne, were charged
with extortion in December last year, after threatening to make the
allegations public, but the formal warning given by the Procurator
Fiscal means that the case will not now go to court.

Professor McDonald and the university applied for the injunction – known
as an interdict in Scottish law – even though the Sunday Herald had been
involved in discussions with it about the story for some time, and had
even agreed the form of words for the story which appeared in its
October 3 edition.

The newspaper’s solicitor-advocate, Tony Jones of law firm BTO, said the
Sunday Herald was in its talks with the university as part of its duty
of responsible journalism.

But the university went to court to seek an order which would have
banned future publication of anything in the story or an undertaking
obliging the newspaper to give it a week’s advance notice of its
intention to publish such material, arguing that it feared that without
such an order or undertaking there would be a “creeping erosion” of the
principal’s reputation.

The newspaper refused to give such an undertaking, saying it would place
impossible restrictions on its ability to report.

But during the hearing the university sprang another surprise by asking
for what would in effect be a super-injunction, which would include a
provision that the fact that the order had been made, and the fact of
the court hearing, could not be reported.

The university’s application was rejected.

Lord Pentland said that both the interdict, and the request for a ban on
reporting it or the hearing itself, were, in the circumstances,
“unnecessary restrictions on responsible journalism”.

Sunday Herald editor Richard Walker said Lord Pentland’s decision was an
“important victory” for press freedom and a welcome departure from
recent decisions in England, where super-injunctions were becoming more
common.