Super injunctions

An updating page about the English court orders known as “super injunctions”. Please contact jt.townend@gmail.com with more detail about the history of these orders.

Injunction (n): “A remedy whereby the court orders a defendant to do, or refrain from doing, a certain thing. It is an equitable remedy, and is available both as an interim remedy pending the final disposal of an action, and as a final remedy.” Source: Lexis ® Library

Super injunction (n):  an injunction which prohibits the reporting of its own existence. Source: (eg.) Mark Thomson on the Inforrm blog. Also known as: super-injunction, superinjunction. First known origin (satire): 2002, The Guardian. First known origin (news): 2009, The Guardian.

As the media commentator Roy Greenslade has noted, the term “super injunction” is now being used by journalists to describe privacy injunctions where the name or names are anonymised but details of the case are publicly available.

A report released on 2o May 2011 by the Master of the Rolls’ committee investigating super injunctions further clarified definitions. It said:

  • Super-injunctions and Anonymised Injunctions:  A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings.
  • An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated. The proper approach to anonymisation has been clarified in the JIH case.
  • Since the Terry case, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential. One was set aside on appeal (Ntuli v Donald [2010] EWCA Civ 1276). The other was granted for seven days for anti-tipping-off reasons (DFT v TFD [2010] EWHC 2335 (QB)). As far as the Committee is aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping-off, short-term, basis.

History of the term

The “super injunction” first came to national prominence in October 2009, when the Guardian challenged an order brought by the law firm Carter Ruck on behalf of the oil trading firm Trafigura, preventing publication of the so-called Minton Report. The newspaper had, however, used the term in a joking manner seven years before. In 2002, writer Tim Dowling satirically claimed:

“A class-action “super-injunction” on behalf of Tom Cruise, Jennifer Lopez, Victoria Beckham, Julia Roberts, Michael Jackson, et al, against everyone they have ever met, will be suspended pending a European court ruling on whether or not celebrities have souls. Campaigners for “Naomi’s law” are considering an appeal.”

The Guardian used the term online at 13.08 on 13 October 2009. Guardian editor Alan Rusbridger said:

“I’m very pleased that common sense has prevailed and that Carter-Ruck’s clients are now prepared to vary this draconian injunction to allow reporting of parliament. It is time that judges stopped granting ‘super-injunctions’ which are so absolute and wide-ranging that nothing about them can be reported at all.”

The term is next used, as recorded in the Nexis® UK database, by PA Media Lawyer, 13 October 2009 reporting Parliament:

“Former shadow home secretary David Davis said: “This is a new class of injunction, a so called super-injunction, in which the press aren’t even allowed to report the injunction itself, the existence of the case, and that is how Parliament’s reporting has been stopped by this.”

The Hansard transcript can be found here. On 14 October 2009, the Guardian stated in its leader pages:

“That media organisations were unable to report a parliamentary question was due to a so-called “super-injunction” obtained by the notorious law firm Carter-Ruck on behalf of Trafigura, a large London-based trading company. A “super-injunction” is one which not only prevents any publication, but which is itself secret. Search in vain for the case in the court lists of the high court in London: it appears only as “RJW and SJW v The Guardian”.”

Recent data

The Ministry of Justice now releases biannual reports with a statistical summary of the number of anonymised privacy injunctions since August 2011.

Anonymised injunction  / privacy hearings in 2010 / 2011

[More detail on the Inforrm blog] CA = Court of Appeal.

8 Responses to Super injunctions

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  5. Barry Turner says:

    Every 2nd year law student knows the maxims of equity, or at least they know the ones that count here. “He who comes to equity must come with clean hands” how do adulterers have these metaphorical clean hands? Equity acts in personam. Law in rem. That makes the concept of injunctions “against persons unknown” or contra mundum (against the world) a nonsense. Since some of our judges firmly believe that our silly antiquated secrecy culture can be exported let them think on this one. A certain politician in a land far far away gets annoyed at bad press he reads in our media. He pops down to the court in his capaital city and gets his judges to injunct contra mundum. Do our judges accept that this injunction is enforecable here?

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