Controversy surrounding the number and effect of privacy injunctions issued by the English courts led in part to the formation in April 2010 of the Committee on Super-injunctions. It was tasked with reviewing the legal position on privacy injunctions and producing recommendations to resolve the concerns that had arisen as a result of recent cases and the coverage and reaction that had followed them.
The committee reported in May 2011. Following its recommendations, a new practice direction was issued for a pilot scheme to record statistical data in relation to certain non-disclosure injunctions, along with 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 August 1 2011. It sets out recommended practice to be followed in an application for interim injunctive relief in civil proceedings that are brought to restrain the publication of information and restrict the exercise of Article 10 of the European Convention on Human Rights. Although it is issued as guidance, not as a practice direction, it is expected to be followed by all parties; the courts will refer to it in determining future applications for relief.
The guidance applies to all applications that seek to restrain publication, whatever their origins. As such, it is not confined to applications founded on Article 8 of the convention, but will also apply to applications in respect of threatened contempt of court, libel, malicious falsehood or harassment, or Norwich Pharmacal applications.
The guidance stresses the importance of open justice - it is a "fundamental principle" and should be derogated from only in exceptional circumstances. Restrictions on the principle must be not only exceptional, but also strictly necessary to achieve their purpose. Given that derogation from the principle of open justice has an impact on the rights of the public, the guidance stresses that derogation cannot be agreed by consent. This addresses the concern that a practice had developed of parties putting agreed terms before a court for approval. This practice not only limited the scrutiny of such orders, but also put an unduly onerous burden on a third party that wished to challenge the position.
In order to resolve any confusion arising from the debate surrounding injunctions, the guidance states that there is "no general exception to open justice where privacy or confidentiality is in issue". However, when considering any derogation from open justice, the courts must 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 (ie, injunctions which contain a prohibition on reporting the fact of the proceedings) are not confined to history. The courts retain the power to grant them, but will do so only in the rarest cases and only where it is strictly necessary. The guidance gives the example of an 'anti-tipping-off' measure, where a further restriction is required to ensure that the court's order is not subverted. Orders of this nature will be granted for short periods only and should not be extended unless the circumstances of the case are exceptional.
The notes on the model order that accompanies the guidance explain that, in principle, if proceedings are anonymised and if an injunction is granted to restrain the disclosure or publication of private information, there is generally no reason to prohibit the reporting of the fact that an order has been made.
Applications will be heard in private only if and insofar as the court is satisfied that "by nothing short of the exclusion of the public can justice be done". The burden of persuading the court that a restriction should be imposed rests with the party that seeks the restriction; cogent and clear evidence must be provided in support thereof.
Following the decision in the case involving Premier League footballer John Terry, a party that seeks an interim non-disclosure order should be aware of its duty to notify known interested parties. The guidance is unequivocal on this issue: all applicants for an order must comply with the provisions on notice in Section 12(2) of the Human Rights Act 1998 and Civil Procedure Rule (CPR) 25. All applicants must notify:
all respondents to the application; and
any non-parties that are to be served with or otherwise notified of the order.
This guidance is not controversial, as it merely repeats the requirements of Section 12(2), although not all applicants have strictly complied with the terms of this section.
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. In order to ensure compliance, applicants will be required to:
inform the court of any non-party which they intend to notify of the order; and
satisfy the court that all "reasonable and practical steps" have been taken to provide advance notice.
Details of all non-parties must be listed in a schedule to any non-disclosure order that is granted. Failure to provide notice will be excused only in exceptional circumstances, such as a tipping-off scenario or blackmail.(1)
The guidance distinguishes between media organisations and internet-based organisations, Twitter users and bloggers. Applicants must provide advance notice of an application to media organisations. Failure to provide such notice will be excused only in cases where there is or was compelling evidence that it was impossible to do so for reasons of urgency or secrecy. Where notice is to be given to a media organisation, it should be given to the organisation's legal adviser (assuming that it has one).
The guidance foresees that different considerations may arise where a respondent or non-party is an internet-based organisation, Twitter user or blogger, but it does not elaborate further. The suggestion is that in some situations, the provision of advance notice to such a party might defeat the purpose of the order - such concerns would be truly exceptional in the case of a recognised media organisation.
Applications and orders should be accompanied by an explanatory note to enable those served with the documents to:
understand the nature of the case;
decide whether they wish to attend the application hearing; and
decide whether they wish to challenge the order (if the application was heard without notice).
The explanatory note is also required to explain restrictions on access to documents.
A model explanatory note accompanies the guidance. It briefly sets out what the application is and when it will be heard (or when it was heard). It also explains the basis of the application in very general terms (eg, threats to publish details of a private relationship). As such, it should not be a difficult or time-consuming document to prepare, but it is unlikely to have significant value for experienced media organisations.
Non-parties and the requirement to give undertakings
In order 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 in documents provided to them will be used only for the purpose of the proceedings. The undertaking is to be provided by a legal adviser, if the non-party has one.
An applicant that provides advance notice of an application must provide the non-party with an explanatory note - which can be anonymised, if necessary - to enable the non-party to consider its position. If 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 whether 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 or notes of the hearing. If it does, an undertaking should be given and the applicant should provide the documents when it serves the order. The guidance provides a draft version of such an undertaking.(2)
Duty of disclosure
Applicants for an interim non-disclosure order must 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 particularly important where the application is made without notice. This duty is continuous and applicants must keep any respondent or non-party subject to the order informed of developments that affect the order.
Case management and procedure
The applicant's advocate is responsible for ensuring that the correct legal procedures are followed and the appropriate forms are used. The advocate must draw the court's attention to any unusual features of the evidence and 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, especially if the hearing is without notice. The note should be drafted so that anyone supplied with it is informed of:
the documents that were put before the court;
the legal authorities on which the applicant relied; and
the information given to the court in the course of the hearing.
Active case management
A court that is seized with an application must ensure that the matter is actively managed and expeditiously pursued. Although there may be considerable problems in locating a respondent, a longstop date must be specified for the service of the claim form. Indefinite extensions of time may not be granted.
The court must specify a return date. It is required to ensure that, in general, the return date is kept, particularly where the order contains derogations from the principle of open justice. This ensures 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 that it progresses. If a return date is repeatedly adjourned and it becomes apparent that a trial is unlikely to take place between the parties, the court must 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 the court has sufficient material to enable it to scrutinise and adjudicate on the matter properly. Resulting orders 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.
A model order is appended to the guidance.(3) Deviations from its terms must be drawn to the court's attention and explained by the applicant's advocate.
Responding to concerns expressed in Parliament and the media about the lack of available data on the number of super-injunctions and anonymised injunctions applied for and granted in privacy proceedings, the Committee on Super-injunctions recommended the introduction of a process to enable the necessary data to be captured and published. The new Practice Direction 51F implements this recommendation. It provides for a procedure whereby the Ministry of Justice's chief statistician is routinely informed of all applications for injunctions where Section 12 of the Human Rights Act 1998 is engaged. It applies to civil proceedings in the High Court or Court of Appeal in which the court considers:
an application for an injunction to prohibit 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;
immigration or asylum proceedings;
proceedings which raise issues of national security; or
proceedings to which CPR 21 applies.
The pilot scheme is set to run from August 1 2011 to July 31 2012. In addition to collecting the claim or application numbers and noting the nature of the hearing (eg, interim application, extension application or appeal), it will note:
whether the application was made with or without notice;
whether the parties consented to the order; and
whether derogations from open justice were sought - and, if so, what they were and whether they were granted.
Derogations from the principle of open justice include, but are not limited to, an order:
that the hearing be held wholly or partly in private;
that the names of one or more of the parties not be disclosed;
that access to documents on the court file be restricted (under CPR 5.4C or the inherent jurisdiction);
that the provision of documents to third parties be restricted (under Practice Direction 25A,9.2); and
which prohibits disclosure of the existence of the proceedings or the order.
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