The 10-point guide for
Ten principles to be considered
when individuals seek super-injunctions to avoid “open justice”
have been endorsed by the Court of Appeal.
The principles were identified by Mr Justice Tugendhat in his decisions
in the case of JIH, a well-known sportsman who sought and obtained an
injunction to prohibit publication of information about his private life.
The Master of the Rolls Lord Neuberger said that in such cases the court
was required to conduct an exercise to balance two competing rights -
the right to respect for privacy and family life under Article 8 of the
European Convention on Human Rights, and the right to freedom of expression
under Article 10.
There was also the "cardinal importance" of open justice.
Lord Neuberger said: "However, as with almost all fundamental principles,
the open justice rule is not absolute: as is clear from Article 6, there
will be individual cases, even types of cases, where it has to be qualified.
"In a case involving the grant of an injunction to restrain the publication
of allegedly private information, it is, as I have indicated, rightly
common ground that, where the court concludes that it is right to grant
an injunction (whether on an interim or final basis) restraining the publication
of private information, the court may then have to consider how far it
is necessary to impose restrictions on the reporting of the proceedings
in order not to deprive the injunction of its effect."
The principles identified in relation to a case such as this, where the
protection sought by the claimant was an anonymity order or other restraint
on publication of details of a case which are normally in the public domain,
"(1) The general rule is that the names of the parties to an action
are included in orders and judgments of the court.
"(2) There is no general exception for cases where private matters
are in issue.
"(3) An order for anonymity or any other order restraining the publication
of the normally reportable details of a case is a derogation from the
principle of open justice and an interference with the Article 10 rights
of the public at large.
"(4) Accordingly, where the court is asked to make any such order,
it should only do so after closely scrutinising the application, and considering
whether a degree of restraint on publication is necessary, and, if it
is, whether there is any less restrictive or more acceptable alternative
than that which is sought.
"(5) Where the court is asked to restrain the publication of the
names of the parties and/or the subject matter of the claim, on the ground
that such restraint is necessary under Article 8, the question is whether
there is sufficient general, public interest in publishing a report of
the proceedings which identifies a party and/or the normally reportable
details to justify any resulting curtailment of his right and his family's
right to respect for their private and family life.
"(6) On any such application, no special treatment should be accorded
to public figures or celebrities: in principle, they are entitled to the
same protection as others, no more and no less.
"(7) An order for anonymity or for reporting restrictions should
not be made simply because the parties consent: parties cannot waive the
rights of the public.
"(8) An anonymity order or any other order restraining publication
made by a Judge at an interlocutory stage of an injunction application
does not last for the duration of the proceedings but must be reviewed
at the return date.
"(9) Whether or not an anonymity order or an order restraining publication
of normally reportable details is made, then, at least where a judgment
is or would normally be given, a publicly available judgment should normally
be given, and a copy of the consequential court order should also be publicly
available, although some editing of the judgment or order may be necessary.
"(10) Notice of any hearing should be given to the defendant unless
there is a good reason not to do so, in which case the court should be
told of the absence of notice and the reason for it, and should be satisfied
that the reason is a good one."
Lord Neuberger added: "Where, as here, the basis for any claimed
restriction on publication ultimately rests on a judicial assessment,
it is therefore essential that (a) the judge is first satisfied that the
facts and circumstances of the case are sufficiently strong to justify
encroaching on the open justice rule by restricting the extent to which
the proceedings can be reported, and (b) if so, the judge ensures that
the restrictions on publication are fashioned so as to satisfy the need
for the encroachment in a way which minimises the extent of any restrictions."