People applying for injunctions which would restrict or stop the media’s right to report information should give news organisations advance notice of their application to the High Court, according to new guidance issued by the Master of the Rolls.
The guidance follows the recommendation made in the report of the committee established by Lord Neuberger, head of civil justice, to examine the issue of super-injunctions – gagging orders which ban reporting of the fact that they have been issued – and other privacy orders.
- August 18, 2021
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Media organisations have complained they are often served with interim orders intended to protect someone’s privacy or confidentiality after they have been made by the court, even though they were not given advance notice of the application.
Section 12 of the Human Rights Act 1988 says a court should not issue an order which will restrict the right to freedom of expression unless all reasonable efforts have been made to give advance notification of an application, or unless there are compelling reasons for not giving such notice.
The new guidance, which came into force yesterday, said: “Applicants will need to satisfy the court that all reasonable and practical steps have been taken to provide advance notice of the application.”
It goes on: “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 … for instance, where there is convincing evidence that the respondent is seeking to blackmail the applicant.
“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.”
The guidance also stresses that open justice is “a fundamental principle” and that the general rule is that hearings are held in public, and that orders and judgments are also public.
Derogations from open justice – for example, anonymising one or more or the parties, or holding a hearing in private – are “wholly exceptional”, the document said.
“There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done,” the guidance said.
“Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case… The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence.”
The guidance also said that “only in the rarest cases” will the grounds of “strict necessity” justify the grant of a super-injunction, giving the example of the need to avoid tipping-off cases in which short-term secrecy allows an applicant to tell the party it binds that it has been made.
An interim injunction cannot include derogations from the open justice principle – such an anonymisation – simply because the parties have consented to it, because such orders affect the rights of public to receive information under the right to freedom of speech guaranteed by Article 10 of the European Convention on Human Rights, the guidance warned, adding: “Parties cannot waive or give up the rights of the public.”
The guidance also said that applications for non-disclosure injunctions “shall be subject to intense scrutiny”. In addition, those who obtain such orders should keep those on whom they are served informed of developments and progress in the case, and let them know when the interim order ceases to have effect.
Meanwhile, the Master of the Rolls has ordered that details of High Court injunctions which ban the media from publishing information or place a restriction on the right to freedom of expression is to be collected by courts and sent to the Ministry of Justice.
The move is the start of a pilot scheme, which runs until July 31 next year, to collate statistics about the number of super-injunctions and non-disclosure injunctions actually being issued by the High Court.
It follows the publication in May of the report of the Committee on super-injunctions established by Lord Neuberger following the uproar over an order obtained by oil trading firm Trafigura and claims that the orders even restricted reporting of proceedings in Parliament.
The lack of statistics about the number of orders being issued, and the nature of the orders, was criticised by the House of Commons Culture Media and Sport Select Committee (CMS) in its February 2010 report on its inquiry into press standards, privacy and libel.
The committee said the shortage of data meant it was not in a position to come to a definitive conclusion on the operation of section 12 of the Human Rights Act, which requires courts considering issuing orders which will restrict reporting to have particular regard to the right to freedom of speech.
It was particularly concerned about anecdotal evidence that the courts were not applying section 12 properly, the CMS committee said.
Lord Neuberger’s committee also criticised the shortage of information, saying: “There is another reason justifying the collection of data concerning super-injunctions: the widespread belief that super-injunctions and other injunctions containing publicity restrictions have become increasingly commonplace.”
It went on: “The current absence of any data renders it impossible to verify whether and to what extent super-injunctions and anonymised injunctions are being granted by the courts.
“Equally, it renders it impossible to verify whether claims of the existence of as many as 200 – 300 such orders refer to super-injunctions, anonymised injunctions, a combination of the two, is based on double counting orders made first at a without-notice hearing and then continued at a with-notice notice hearing, or is simply an exaggeration.”
‘Secret process’ in the civil courts
The report said: “The absence of evidence has encouraged a view that an entirely secret process has developed in the civil courts, and that this is improper in principle, risks neutering press freedom to report matters of public interest and undermines the public’s right to be informed of court proceedings.
“This view not only undermines public confidence in the proper administration of justice, but equally it undermines public confidence in a free press being able to report responsibly on matters of public import. As such, it stands to undermine the rule of law and our open democracy.”
The new Practice Direction 51F, issued under Rule 51.2 of the Civil Procedure Rules, which govern the conduct of civil litigation, requires the High Court and Court of Appeal to notify the chief statistician at the Ministry of Justice of all applications for injunctions prohibiting the publication of private or confidential information, the continuation of such an injunction, or appeals against the grant or refusal of such an injunction.
It came into force on 1 August.
The scheme does not apply to family proceedings, immigration or asylum proceedings, those which raise issues of national security or those relating to children and protected parties.
The courts must give details of the claim, say whether other parties or those who would be affected by an order were given notice of the application.
They must also say whether any party sought derogations from the principle of open justice such as having hearings in private, seeking anonymity for one or more of the parties, or seeking restrictions on access to court papers.