Super Injunctions

**~~removeduser_487563287433~~** · May 19, 2011, 10:46 AM

I've brought super injunctions for discussion here before, but previously always in the context of the Libel Reform movement. Seeing as reform of our libel laws has indeed now gained traction, and because of recent events, I thought it would be best to establish a thread devoted to these injunctions themselves.

Super injunctions, in case you do not know, are gagging orders, preventing the press from reporting on a certain thing. A super injunction prevents the press from even reporting on the existence of that injunction. These are intended for use in court cases where making details of the case public might have a negative affect on that case - for example causing a public debate that might influence a jury. However, in practice, they are being used by the rich and powerful to suppress inconvenient facts. These are usually highly boring "kiss-and-tell" stories about footballers, actors and sods of every variety, but they have also been used for more sinister reasons: for example an oil company was successful in obtaining an injunction that prevented The Guardian from reporting on a Parliamentary Question regarding that company knowingly dumping toxic waste on populated areas of the Ivory Coast, causing a variety of health problems for the local people.

I bring this up today as within the last hour the Liberal Democrat peer Lord Stoneham has raised a super injunction in the House of Lords by mentioning a sexual relationship alleged towards the former Royal Bank of Scotland banker Fred Goodwin. Members of the House of Lords are exempt from prosecution, even if they break a crime, by speaking in the Lords:

http://www.bbc.co.uk/news/uk-politics-13453626

Following this the High Court has lifted Goodwin's anonymity on the matter.

Now, I need to say something first off. I in absolutely no way consider it in the public interest to know who has had consensual sex with who, whether they are a banker, footballer, actor or anybody.

However it is very clear the widespread abuse of super injunctions is undermining the freedom of our society greatly and need to be reformed with haste. You only need to review the Trafigura/Carter-Ruck case to see that:

http://en.wikipedia.org/wiki/Carter-Ruck#Trafigura

**Sphere** · May 19, 2011, 10:53 AM

Spoiler Alert, click show to read:

**~~removeduser_487563287433~~** · May 19, 2011, 10:53 AM

What's your point?

**Their Law** · May 19, 2011, 10:56 AM

Originally Posted by Ferrets54

What's your point?

Most likely something to do with the alleged superiority of the US system.

To be honest I've not really been paying attention to the Super Injunction saga. Is there a proposed replacement for them? Or is it just a proposed tweaking of the pre existent legislation.

**~~removeduser_487563287433~~** · May 19, 2011, 10:58 AM

Originally Posted by Their Law

Most likely something to do with the alleged superiority of the US system.

And the French one, which would amuse me as French privacy for the rich and powerful is much, much more robust.

**Sphere** · May 19, 2011, 11:01 AM

What's your point?

Low-brow ridicule of the UK system of government.

**~~removeduser_487563287433~~** · May 19, 2011, 11:04 AM

Originally Posted by Sphere

Low-brow ridicule of the UK system of government.

Injunctions exist in the USA. The situation is worse in France. Thank you, bye.

Originally Posted by Their Law

To be honest I've not really been paying attention to the Super Injunction saga. Is there a proposed replacement for them? Or is it just a proposed tweaking of the pre existent legislation.

It's too early days. The coalition has expressed concern, with the PM saying he is "uneasy". The Lib Dems appear to be actively using parliamentary privilege now to overthrow some.

**Father Jack** · May 19, 2011, 11:15 AM

Good lord, whats going on here?

**~~removeduser_487563287433~~** · May 19, 2011, 11:28 AM

Stoneham has just said he has taken this action as a matter of "equality of the law". I am not sure I agree with him, and he may have damaged the cause by choosing to bring this man's personal life up.

**~~removeduser_487563287433~~** · May 20, 2011, 04:47 AM

Judges have concluded in a review that super-injunctions 'can only be granted when they are strictly necessary'.

**Plan C** · May 20, 2011, 05:03 AM

Originally Posted by Ferrets54

Judges have concluded in a review that super-injunctions 'can only be granted when they are strictly necessary'.

Whose discretion determines "strictly necessary"?

**Adhamh Ashashi** · May 20, 2011, 05:09 AM

Originally Posted by Brick Top

Whose discretion determines "strictly necessary"?

Judicial discretion. They have gotten around making law by actually enforcing their own discretion. Since the Irish Legal System is extremely close to the English, this will have an impact on our injunction system.

Most injunctions in Ireland are usually interlocutory regarding business deals etc. Nothing of this sort though.

**~~removeduser_487563287433~~** · May 20, 2011, 05:10 AM

Originally Posted by Brick Top

Whose discretion determines "strictly necessary"?

Judges. Hints in the job title.

**Plan C** · May 20, 2011, 05:28 AM

Originally Posted by Ferrets54

Judges. Hints in the job title.

My point exactly. What are likely changes to status quo then? As long as personal discretion is used then it is also subject to being abused.

**~~removeduser_487563287433~~** · May 20, 2011, 05:29 AM

Originally Posted by Brick Top

My point exactly. What are likely changes to status quo then? As long as personal discretion is used then it is also subject to being abused.

Judges aren't mavericks, they do have to follow reviews such as this in their decision making. This should go some way to addressing the balance, although I don't pretend it's watertight, and it will almost certainly not be the final development.

**Adhamh Ashashi** · May 20, 2011, 05:37 AM

Originally Posted by Brick Top

My point exactly. What are likely changes to status quo then? As long as personal discretion is used then it is also subject to being abused.

Who else is in a better position to determine whether a super injunction should be imposed? Probably the person with years of experience. And you must not forget, there is a precedent to be followed by judges. A judge in the High Court cannot ignore a judgement made in the House of Lords.

As Ferrets said, it is only a step. This is supposed to be the catalyst for the legislature to put this law into statute. Once it is in statute, no more personal discretion of this level.

Personal discretion is in every action taken to the court. You cannot help it.