We have previously reported on the controversy surrounding the number and effect of privacy injunctions (see links here and here). This controversy led in part to the formation in April 2010 of the Super-Injunction Committee, chaired by the Master of The Rolls, Lord Neuberger. It was tasked with reviewing the legal position and coming up with recommendations to try and resolve the concerns that had arisen as a result of recent cases and the coverage and reaction that has followed. It reported in May 2011 (a copy of its report is accessible here). Following its recommendations, the Master of the Rolls has issued a new Practice Direction for a pilot scheme to record statistical data in relation to certain non-disclosure injunctions and new Practice Guidance on best practice in interim non-disclosure orders (commonly known as privacy injunctions and gagging orders).

Best Practice in Applications for Interim Injunctive Relief

The new Guidance Note for Interim Non-Disclosure Orders came into effect on 1 August 2011. It sets out recommended practice to be followed in any application for interim injunctive relief in civil proceedings to restrain the publication of information and restrict the exercise of Article 10. Although it is issued as guidance and not as a Practice Direction is it expected to followed by all parties and that the courts will refer to it in its determination of future applications for relief. It can be accessed here.

The Guidance applies to all applications that seek to restrain publication whatever their genesis (i.e.) it is not confined to applications founded on Article 8 of the European Convention (ECtHR) but will also apply to applications in respect of threatened contempt of court, libel or malicious falsehood, harassment, or a Norwich Pharmacol Application.

The general principles

The Guidance stresses the importance of open justice; it is a “fundamental principle” and one that should only be derogated from in exceptional circumstances. Restrictions on the principle must not only be exceptional, they must also be strictly necessary to achieve their purpose. Given that any derogation from the principle of open justice impacts on the rights of the public at large, the Guidance stresses that they cannot be agreed by consent. This addresses the concern that a practice had developed of parties putting agreed terms before a court for approval. Not only did this practice limit the scrutiny of such orders, it put an unduly onerous burden on any third party wishing to challenge the position. To clear up any confusion that might exist following the frenzied debate surrounding injunctions, we are reminded in the Guidance that there “is no general exception to open justice where privacy or confidentiality is in issue”. That said the courts, when considering any derogation to open justice, are required to have regard to the Convention rights of those involved. Where Article 8 is engaged the courts are required to ensure that the process of protecting that right does not undermine any ultimate vindication. Super-injunctions are not confined to history. The power to grant a super-injunction, that is an injunction which contains a prohibition on reporting the fact of the proceedings, remains but such an order will only be granted in the rarest of cases and only where strictly necessary. The example given is the classic case of the anti-tipping-off scenario, where a further restriction is required to ensure that the order of the court is not subverted. Orders of this nature will be granted for short periods only and should only be extended in truly exceptional cases.

The notes to the Model Order that accompanies the Guidance explain that if proceedings are anonymised, and an injunction is granted restraining disclosure or publication of private information, there is generally no reason in principle to prohibit in addition any report of the fact that an order has been made.

Going forward, applications will only be heard in private if and to the extent the court is satisfied that “by nothing short of the exclusion of the public can justice be done”. The burden of persauding the court that a restriction should be imposed lies with the person seeking it who must provide cogent and clear evidence in support.

Notice

Following the decision of Mr Justice Tugendhat in the John Terry case  any party seeking an interim non-disclosure order should be in no doubt of its duties to notify known interested parties. On this issue the Guidance is unequivocal. All applicants for an Order must comply with the provisions on notice in section12(2) of the Human Rights Act 1998 and CPR 25. This means that all applicants must notify (1) all respondents to the application; and (2) any non-parties who are to be served with or otherwise notified of the order (“non-parties”). This should not be controversial given that it is merely repeating the requirements of section 12(2), even if its terms have not always been strictly complied with by applicants.

Respondents and non-parties are entitled to advance notice of the application hearing and should be served with a copy of the Application Notice and any supporting documents. To ensure compliance, applicants will be required to inform the court of any non-party they intend to notify of the order and to satisfy the court that all “reasonable and practical steps” have been taken to provide advance notice. Details of all non-parties are to be listed in a schedule to any non-disclosure order granted. Failure to provide notice will only be excused in exceptional circumstances, such as the tipping-off scenario or blackmail (consistent with the decision in DFT v TFD).

The Guidance distinguishes between media organisations and internet based organisations, tweeters and bloggers. Applicants must provide advance notice of an application to media organisations and any failure to do so will only be excused in cases where there is or was compelling evidence that it was not possible to do so for reasons of urgency or secrecy.

Where notice is to be given to a media organisation it should be effected on the organisation’s legal adviser, assuming it has one.

The Guidance anticipates that different considerations may however arise where a respondent or non-party is an internet based organisation, tweeter or blogger but it does not elaborate further. The suggestion is that there may be situations where there are valid concerns that the provision of advance notice to such a party would defeat the purpose of the order, concerns which would be truly exceptional in the case of a known media organisation.

Explanatory Notes

In future applications and orders should be accompanied by an Explanatory Note. An Explanatory Note is intended to enable those served with the documents to understand the nature of the case, ascertain whether they wish to attend the application hearing, or whether they wish to challenge the order (if the application was heard without notice). The Explanatory Note is also required to explain any restrictions on access to documents.

A model Explanatory Note accompanies the Guidance. It is a short document which sets out, in very brief terms what the application is, when it will be (or was heard) and, in very general terms, the basis of the application (eg threats to publish details of a private relationship). As such it will not be difficult or time consuming to prepare, although it is unlikely to be of significant value to experienced media organisations.

Non-Parties and the requirement to give undertakings

To protect the interests of an applicant in maintaining the confidentiality of information contained in documents, non-parties will be required to provide an irrevocable written undertaking to the court that the material and information contained within documents provided to them will only be used for the purpose of the proceedings. Any undertaking is to be provided by a legal adviser where the non-party has one.

An applicant providing advance notice of an application is required to provide the non-party with an Explanatory Note, which can be anonymised if it is strictly necessary to do so, to enable the non-party to consider its position. It the non-party is unwilling to give an undertaking no further information need be supplied.

Where an applicant is notifying a non-party of an order, it should first determine if the non-party will require copies of the material read by the judge and the hearing papers, including witness statements and exhibits in support of the application and/or notes of the hearing. If it does an undertaking should be given and the applicant should then provide the documents when it serves the order.

A draft form undertaking is at page 10 of the Guidance.

The Duty of Disclosure

Applicants for an interim non-disclosure order are required to make “full, fair and accurate disclosure of all material information to the court and to draw the court’s attention to significant factual, legal and procedural aspects of the case”. This is particular the case where the application is made without-notice. This duty is continuous and applicants are required to keep any respondent and non-party subject to the order informed of any developments that affect the order.

Case Management and Procedure

The Guidance places the responsibility on an applicant’s advocate to see that the correct legal procedures are followed and appropriate forms used and the advocate is required to draw the court’s attention to any unusual features of the evidence and to explain how the proposed order differs from the Model Order appended to the Guidance.

It is the duty of the advocate and a party’s solicitors to ensure that a full and accurate note of any hearing is made, but especially where the hearing is without notice. The note should be drafted so that anyone supplied with it is informed of: what documents were put before the court; which legal authorities were relied on by the applicant; and what the court was told in the course of the hearing.

Active Case Management

Any court seized with an application must ensure that the matter is actively managed and that the matter is pursued with expedition. Although there may be considerable problems in locating a respondent, a long-stop date must be specified for the service of the claim form. It is not permissible to give an indefinite extension of time.

Return Date

A return date must be specified by the court and the court is required to ensure that, as a general rule, the return date is kept, particularly where the order contains derogations from the principle of open justice. This is the means of ensuring that an interim order does not become a substitute for a full hearing of the matter.

A return date can be adjourned for valid reasons, but the court should ensure that there is a provision for periodical review of a claim to ensure it progresses. In circumstances where a return date is repeatedly adjourned and it is apparent that a trial is unlikely to take place between the parties, the court is required to either dismiss the substantive action, proceed to summary judgment, enter judgment by consent, substitute or add an alternative defendant, or direct that the claim and trial proceed in the absence of a third party. It will not always be necessary for the parties to return to court on the return date. A hearing can be dealt with on paper provided that court has sufficient material to enable it to properly scrutinise and adjudicate upon the matter. Any resulting order should be given in public and be publicly available.

Where possible a reasoned judgment should be given in all cases. If it is not proportionate to do so, a short note of judgment containing the points of general interest should be supplied.

Model Order

A Model Order is appended to the Guidance at page 13.  Any deviations from its terms must be drawn to the court’s attention and explained by the applicant’s advocate.

The Practice Direction

Responding to concerns expressed in Parliament and the media about the lack of available data concerning the number of super-injunctions and anonymised injunctions applied for and granted in privacy proceedings, the Super-injunctions Committee recommended the introduction of a process to enable the necessary data to be captured and published. The new Practice Direction (51F) implements this recommendation.

PD 51F provides for a procedure to routinely notify the Ministry of Justice’s the Chief Statistician of all applications for injunctions where section 12 of the Human Rights Act 1998 is engaged. It applies in any civil proceedings in the High Court or Court of Appeal in which the court considers an application for an injunction prohibiting the publication of private or confidential information, the continuation of such an injunction, or an appeal against the grant or refusal of such an injunction.

The scheme does not apply to proceedings to which the Family Proceedings Rules 2010 apply, to immigration or asylum proceedings, to proceedings which raise issues of national security or to proceedings to which Part 21 applies.

The pilot is set to run from 1 August 2012 to 31 July 2012.

The information that will be collected includes the claim or application number, the nature of the hearing (eg interim application, extension application, appeal etc), whether the application was made with or without notice, whether the parties consented to the order and whether any derogations from open justice were sought, what they were and whether they were granted.

Derogations from the principle of open justice include, but are not limited to:

(a) an order that the hearing be held wholly or partly in private;

(b) an order that the names of one or more of the parties not be disclosed;

(c) an order that access to documents on the court file be restricted (under rule 5.4C or the inherent jurisdiction);

(d) an order that the provision of documents to third parties be restricted (under Practice Direction 25A, paragraph 9.2); and

(e) an order prohibiting disclosure of the existence of the proceedings or the order.

See the Privacy Law Handbook Chapters 3, 10.1 and 10.2