On Thursday 17 October 2013 Mr Justice Cooke granted the Serious Fraud Office a without notice injunction against Wall Street Journal journalist David Enrich to prevent the publication of the names of individuals on the indictment in the LIBOR trial, R v Hayes, Farr and Gilmour. The Wall Street Journal have published a copy of the injunction [pdf].
The injunction prevents the publication of any names on the indictment except for Tom Hayes, Terry Farr and James Gilmour or any other information from which those individuals might be identified.
The publishers of the Wall Street Journal, Dow Jones & Co. said it had published on several of its platforms the names of about two dozen traders and brokers whom prosecutors are expected to identify. The company said in a statement
“This injunction is a serious affront to press freedom. We have been left with no choice but to remove the previously published story from WSJ.com and to withhold publication from the print edition of The Wall Street Journal Europe. However, we will continue to vigorously fight the injunction in the coming days.”
There is a report about the injunction in the Wall Street journal. It has also resulted in considerable comment in the US Media (for example, the Washington Post and USA Today) but, with the exception of a mention on the City AM Blog and by Guido Fawkes has attracted very little attention in the UK.
The jurisdictional basis of the injunction is not clear on the face of the order but it appears to be designed to restrain a threatened contempt of court. Such an injunction can be granted by a Crown Court judge under section 45(4) of the Senior Courts Act 1981 (see ex parte HTV Cymru (Wales) Ltd [2002] EMLR 184). It would have to be shown that publication would create a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced (see Contempt of Court Act 1981 s.2(2)). In relation to such an injunction application the Court of Appeal have emphasised that there is a “high standard of persuasion” in such cases (see Chief Constable of Greater Manchester v Channel 5 [2005] EWCA Civ 739).
The order is expressed to be on an interim basis pending the determination of an application for reporting restrictions to be heard at the Southwark Crown Court on 21 October 2013.
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