A Committee chaired by the Master of the Rolls, Lord Neuberger, has published its findings on super-injunctions, anonymity injunctions and open justice. Its report has been made to the Lord Chief Justice, the Lord Chancellor, and the Civil Procedure Rules Committee.
Lord Neuberger’s Committee was formed in April 2010 following a report of the Culture, Media and Sport Select Committee, and in the light of growing public concerns about the use and effect of what were termed super-injunctions and the impact they were having on open justice. The membership of the Committee brought together legal specialists, including representatives of the media and of claimants, to try and resolve the concerns that had arisen as a result of recent cases and the coverage and reaction that has followed.It provides guidance to lawyers and journalists of the steps to be followed before a super-injunction or an anonymised injunction is applied for. The Committee has also produced a draft form of Guidance and a draft Model Order for use in future cases. Taken overall the effect of the report will be to clarify the court processes and to establish the framework in which such applications may be made and should be decided.
Lord Judge, Lord Chief Justice, welcoming the report said:
“No one, and in particular no judge, doubts that the open administration of justice is a long-standing, treasured principle of our legal system.
“Before 2000 there was in England and Wales no general right to privacy and therefore no right to an injunction to protect or enforce any general claim to privacy. The development of privacy rights since 2000 was an inevitable consequence of the enactment of the Human Rights Act 1998 and the incorporation of the European Court Convention of Human Rights, and in particular article 8 of the Convention, into domestic law. That consequence was indeed clearly explained to Parliament before the Human Rights Act was enacted.”
“Contrary to some commentary unelected judges in this country did not create privacy rights. They were created by Parliament.Now that they have been created judges in this country cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by Parliament, including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights underlined in Article 10 and the principle of freedom of expression. The relationship between Parliament and the courts has, for generations, been predicated on mutual understanding and respect.Judges have never asserted, and they are not now asserting, any authority or jurisdiction over Parliamentary proceedings or debate, which are exclusively matters for Parliament.”
“Notwithstanding its distinguished membership, Lord Neuberger’s Committee was not vested with any authority to enlarge or reduce any of the principles of open justice and freedom of expression or privacy or confidentiality rights. “However the report will have a valuable practical effect on the way in which the courts deal with applications for injunctions based on alleged privacy rights.”
Lord Neuberger said:
“Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And, when it is ordered, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment.
“We have tried to achieve a procedural system which strikes a fair and proper balance between the principles of open justice and freedom of expression for the public and the media, and an individual’s right to confidentiality and privacy.
“I am really grateful to all the members of the Committee for the expertise they have contributed and the hard work they have done in compiling the report. I am pleased and impressed by the extent to which the competing interests of the media and of claimants have managed to reach agreement on our proposals, which I hope and expect will improve the interests of justice and the rule of law.”
The Committee’s terms of reference were confined to the use of injunctions in (the context of) claims based on privacy rights.They did not address exceptions to the principles of open justice in other types of proceeding, such as family proceedings or Court of Protection proceedings.
The key findings and recommendations are as follows:
As the Courts have frequently emphasised, open justice is, and has long been, a fundamental constitutional principle. It requires that all aspects of court proceedings should be open to, and freely discussed by, the public, and in particular, the media, and only permits oflimited exceptions, either those which are created by statute, or those which involve judicial discretion, to the extent that they are strictly necessary in the interests of justice.
Although confidential information has long been protected, a general right to respect for privacy was not recognised until 2000.Concerns have been expressed in some quarters about the way in which the law of privacy and confidentiality has developed since the introduction of the Human Rights Act 1998, particularly in interim injunction cases, given Parliament’s intention in passing section 12 of that Act, which was particularly concerned with maintaining a balance between privacy and freedom of expression. These concerns must be addressed either on a case-by-case basis by the courts or, at a more general level by Parliament.
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.
There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.
There has also been an increase in the number of cases which are anonymised. The law on anonymisation has been clarified in two recent Court of Appeal decisions. Confusion has arisen as many cases with privacy or anonymity aspects have been wrongly labelled as super-injunctions.
When anonymised orders are made, the court has and should wherever practicable provide a reasoned judgment for its decision.
The Committee has produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.
The Committee does not consider specific guidance on expedited appeals is necessary as such guidance already exists. It should however be revised and updated. It also recommends that training for judges who hear applications for injunctions which may impact on the principles of freedom of expression should continue.
The Ministry of Justice, with the assistance of HMCTS, should collect data about super-injunctions and anonymised injunctions, in relation to all privacy orders which derogate from the principles of freedom of expression.It is anticipated that the Ministry will implement this recommendation as soon as practicable.
The court has never asserted, and could not properly assert, power or authority to restrict Parliamentary debate or proceedings. The relationship between Parliament and the courts is predicated on mutual respect and confidence. The chapters in the Report which address questions relating to Parliamentary privilege and process have been disclosed to the Speaker of the House of Commons and to the Lord Speaker in the House of Lords. It is intended that any issues arising in the context of claims for injunctive relief on the basis of privacy will be discussed further with them,
Media reporting of what was said in Parliament is only protected if it is a summary of Hansard published in good faith. The extent, if any, to which other media reports of Parliamentary proceedings in breach of a court order would be protected is unclear.
Notes to editors
The Committee members were:
Lord Neuberger of Abbotsbury, Master of the Rolls and Head of Civil Justice (Chairman)
Desmond Browne QC (Barrister, 5 Raymond Buildings)
Rod Christie-Miller (Partner and Chief Executive at Schillings, Solicitors)
Michelle Dyson (Head of Legal Policy, Ministry of Justice)
Lord Justice Moore-Bick (Deputy Head of Civil Justice)
Marcus Partington (Chair of Media Lawyers Association, and Deputy Secretary/Group Legal Director, Trinity Mirror Plc)
Alasdair Pepper (Partner at Carter-Ruck, Solicitors)
Gillian Phillips (Director of Editorial Legal Services, The Guardian)
John Sorabji (Barrister, Legal Secretary to the Master of the Rolls)
Mr Justice Tugendhat (Judge in charge of the Jury/Non-Jury Lists)
Lord Judge, Lord Chief Justice, attended some Committee meetings as an observer.
Secretary to the Committee: Peter Farr, Private Secretary to the Master of the Rolls
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