One aspect of this issue was covered in my post on the case of Ntuli v Donald ([2010] EWCA Civ 1276). Readers will recall that the Master of the Rolls is chairing a committee on super injunctions, and it includes judges, barristers, and solicitors representing both the press and claimants and should be published in the next few weeks. His speech may possibly give a hint about the contents of the forthcoming report. Interestingly, unlike most of the tabloid press, he does not conflate superinjunctions with anonymisation:
A super injunction is simply an interim injunction whose purpose is to restrain a person from publishing information which the claimant contends is private or confidential in nature. Traditionally, the most common example of such an injunction was to protect commercial secrets. What makes an injunction a super injunction is that it also restrains publication of the fact that the injunction has been sought and made and the very fact that proceedings are ongoing. Such injunctions can obviously only be granted where there is information which is capable of being legally protected. Super injunctions like any other injunction can only be granted in support of substantive legal rights. They do not determine those rights. They simply exist, as all interim injunctions do, to ensure that the proper administration of justice is not frustrated pending trial and final judgment.
For instance, if a claimant is entitled to an injunction restraining publication of a story that he (and it almost always is “he”) has had a sexual relationship with a third party, then it would be literally absurd if open justice prevented him from stopping the press reporting that he had obtained an injunction restraining publication of a story that he had had such a relationship. Thus, once one accepts that the court has power to grant an injunction restraining a breach of privacy, it has to follow that the court has the ancillary power to restrain publication of details of the injunction proceedings, application, hearing, proceedings or order.
Lord Neuberger recognises the concern about secret justice in these terms:
The concern over super injunctions is that they have, as Professor Zuckerman has put it, developed into a form of entirely secret form of procedure. As he put it, ‘English administration of justice has not (previously) allowed’, that is ‘for the entire legal process to be conducted out of the public view and for its very existence to be kept permanently secret under pain of contempt.
‘English law has not known of such a procedure – of secret justice – since 5 July 1641, when the Long Parliament abolished the Court of Star Chamber.
He explains that this concern was reflected in the judgment in the Ntuli case by the Vice-President of the Court of Appeal, Lord Justice Maurice Kay, in his statement “that the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which [the claimant] is entitled.”
The Master of the Rolls then turns to the distinct issue of anonymisation covered authoritively in the JIH case of the Court of Appeal where he, the Vice-President, and Lady Justice Smith set out
“ten important items of principle and practice, based on those identified by Tugendhat J, with a view to minimising the inroads made on open justice when there is a need for some sort of reporting restrictions, whether it is the grant of anonymity to parties, limiting or excluding the reporting of the subject-matter of the case or other limitations.”
He concludes on this topic:
The case involved the grant of an injunction restraining the publication of alleged sexual activity of an international sportsman. The issue was whether we should let the name of the sportsman be published, in which case we would have had to ban publication of details of the story, or grant the sportsman anonymity, in which case the basic nature of the story could be published. Partly because, in the light of the history, naming the sportsman might well have enabled people to work out the nature of the story, we decided to grant him anonymity. But this was also arguably justified by the point that the public interest is better served by knowing about the type of case which is coming before the courts, and the types of case in which reporting restrictions are being granted, than by knowing which famous sportsman is seeking an injunction for wholly unspecified relief. In this connection, there may well be a difference between what is in the public interest to know and what the public want to know – or perhaps what some newspapers want the public to want to know.
Charlotte Harris is a partner at Mishcon de Reya.