News: Injunction Guidance Issued

The Master of the Rolls yesterday issued guidance on Interim injunctions. It is available on the MOJ website here and includes not only guidance but also model orders and undertakings consistent with his report of earlier this year.

The most significant parts of the new guidance relate to notification and are set out below. A detailed post will appear later this month.

Notice of Application

18. Applicants must comply with the requirements set out in HRA s12(2), CPR 25.3(2) and (3), and CPR PD 25A 4.3(3).

19. HRA s12(2) applies in respect of both (a) respondents to the proceedings and (b) any non-parties who are to be served with or otherwise notified of the order, because they have an existing interest in the information which is to be protected by an injunction (X & Y v Persons Unknown [2007] EMLR 290 at [10] – [12]). Both respondents and any non-parties to be served with the order are therefore entitled to advance notice of the application hearing and should be served with a copy of the Application Notice and any supporting documentation before that hearing.

20. Applicants will need to satisfy the court that all reasonable and practical steps have been taken to provide advance notice of the application. At the hearing they should inform the court of any non-party which they intend to notify of the order as the court is required to ensure that the requirements of HRA s12(2) are fulfilled in respect of each of them. A schedule to any interim non-disclosure order granted should provide details of all such non-parties.

21. Failure to provide advance notice can only be justified, on clear and cogent evidence, by compelling reasons. Examples which may amount to compelling reasons, depending on the facts of the case, are: that there is a real prospect that were a respondent or non-party to be notified they would take steps to defeat the order’s purpose (RST v UVW [2009] EWHC 24 at [7] and [13]), for instance, where there is convincing evidence that the respondent is seeking to blackmail the applicant (ASG v GSA [2009] EWCA Civ 1574 at [3]; DFT at [7]).

22. Where a respondent, or non-party, is a media organisation only rarely will there be compelling reasons why advance notification is or was not possible on grounds of either urgency or secrecy. It will only be in truly exceptional circumstances that failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order. Different considerations may however arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, or where, for instance, there are allegations of blackmail.

23. Where notice of the application is to be given to a media organisation it should be effected on the organisation’s legal adviser, where it has one. The court will bear in mind that such legal advisers are: (i) used to participating in hearings at short notice where necessary; and ii) able to differentiate between information provided for legal purposes and information for editorial use. Notice and Undertakings to the Court – Non-Parties

24. In order to provide effective protection of private and/or confidential information and information contained in private and/or confidential documents provided by applicants to non-parties: (i) where an applicant is to provide advance notice of an application to a nonparty; or (ii) where an applicant notifies a non-party of an order, material supplied to the non-party by the applicant shall be supplied upon the applicant receiving an irrevocable written undertaking to the court that the material and the information contained within it, or derived from such material or information, will only be used for the purpose of the proceedings. A standard form of wording for the undertaking is set out in the notes to clause 13 of the Model Order, contained in the Model Order guidelines.

25. Where an applicant is to provide advance notice of an application to a non-party they should first provide the non-party with a copy of the Explanatory Note, which may where strictly necessary refer to the applicant and/or respondent by three anonymised initials. If, the non-party is willing to provide the irrevocable written undertaking, the applicant should then supply the materials, including the applicant’s and respondent’s names, to the non-party upon receipt of the undertaking. Where the non-party is unwilling to provide the undertaking, no further information need be supplied by the applicant. (Information concerning when and where the application is to be heard should be set out in the Explanatory Note.)

26. Where an applicant notifies a non-party of an order, which should contain the provision set out in clause 13 of the Model Order, provision of material to a nonparty shall be effected promptly by the applicant upon request, and upon receipt of the irrevocable written undertaking. Prior to notifying the non-party of the order and where urgency does not preclude it, the applicant should ascertain whether the non-party will require a copy of any materials referred to in clause 13 of the Model Order. Where the non-party indicates it will do so, it should at that stage provide the applicant with the written irrevocable undertaking. The applicant will then be in a position to, and should, serve a copy of the order and the relevant materials together. Where the non-party is unwilling to give the undertaking in advance of service of the order, the applicant will not be required to supply any relevant materials to the non-party until such time as the undertaking is given or further order of the court.

27. The undertaking should be provided on behalf of the non-party by its legal adviser where it has one. It should be provided by the non-party itself where it has no legal adviser. Breach of the undertaking may be held to be a contempt of court, which would render the non-party liable to imprisonment, a fine or having their assets seized.

28. For the purpose of paragraph 24, material includes: the application and any supporting documentation; and a copy of any materials specified under CPR PD 25A 9.