Warning: This post retails gutter press tittle tattle from the start. It then descends into a serious legal discussion of injunctive relief – which is not as sexy as it sounds. Sorry.
Jemima Khan has denied involvement in an act that would have brought her down in the eyes of all right-thinking individuals: seeking an injunction against the press. Max Mosley, meanwhile, has lost his attempt to force newspapers to warn people before they publish stories about their private lives. Such pre-notification might allow an errant husband to square things with his wife before the world of journalism appears at their front door. It is more likely, though, that Mr Mosley would have used this valuable time to awaken a judge from his slumbers and get him to issue a quickie super-injunction.
There used to be a simple legal principle: if something is true, you can say it (subject to various issues such as confidentiality). In the weird and wacky world of the super-injunction (or even the ordinary bog-standard injunction) if people say it, even if it’s true, “they should expect a knock at the door in the next 48 hours and they should take their toothbrush to court, because they can expect to spend a very long time in Pentonville,” as media lawyer Mark Stephens at Finers Stephens Innocent put it. This even as a result of a little Twitter chitter-chatter.
It sounds pretty draconian. Oh, all right; Stephens is exaggerating a little, but breach of an injunction is a contempt of court. This allows a judge to punish the offender summarily on his own judgment (juries don’t come into it) and choose from a range of penalties including large fines or imprisonment for up to two years. So, actually, it is pretty draconian. Best to pack a few toothbrushes.
The judge can do all this even though there has been no full hearing of the case that lies behind the injunction. In other words the issues have not been tried and it may well be that, ultimately, the applicant has no case, even under the European Convention on Human Rights Article 8 (Everyone has the right to respect for his private and family life, his home and his correspondence).
An interim injunction is intended to halt, say, a newspaper’s publication of a star’s sexual misdeeds. It is given pending a full hearing of the substantive case. The injunction may be issued without the newspaper’s lawyers even having an opportunity to put in a defence (ex parte in the old jargon, now known as an injunction without notice). The judge simply has to decide whether, if the newspaper published but then lost the (later) substantive case, the loss to the star would have been so great that it could not be remedied by damages. And the judge is always going to decide, yes, publication now cannot be undone later, so it is better, on balance, to ban publication now.
It is true that the judge must also have the Convention open at Article 10 (Everyone has the right to freedom of expression) and the Human Rights Act 1998 S. 12 when he makes the order and hence “be satisfied that the applicant is likely to establish that the publication should not be allowed” – in other words that there is a good case for a ban and that the case is likely to be sustained in the substantive trial of the issues.
Doubtless the learned judge will never have heard of half the stars who appear in front of him in these sad circumstances since he will be no avid reader of the yellow press (“Who, might I ask, is Mr X?” “He is a popular televisual entertainer, m’Lud”). But it is very likely that, without a full examination of the implications of Article 8, he will plump on the side of caution and give the injunction.
The problem, for freedom of the press, is that once the applicant has the interim injunction, he has no incentive to move to the substantive case. It would be costly, long drawn-out and, in particular, he might get the wrong result since, once the arguments have been put in full, the judge might decide there is no good reason to continue to ban publication.
So the issue remains in limbo but with the threat of terrible consequences if someone lets the cat out of the bag. It is very difficult to challenge interim injunctions since the judge has a broad measure of discretion in issuing them. As long as his thought processes are as outlined above, he has acted wholly correctly.
Perhaps, as time passes and the star fails to bring his case to court, a challenge could be made. Perhaps the paper could claim the star had no intention of bringing a case; he just wanted the injunction. He would have breached rules of equity (since injunction is an equitable remedy) in making the claim. He who comes to equity must come with clean hands (ie with honest intentions) and not hands behind his back and fingers crossed as he addresses the judge.
But the fact is that these cases often remain in limbo, the case never heard, the chance to assert the legal right of freedom of the press never offered. This is the concern of the Liberal Democrat MP for Birmingham Yardley, John Hemming, who said in Parliament: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” He noted too that the matter, while in this limbo, also remained apparently sub judice so the legal issues cannot be discussed even though there may be no intention by the plaintiff to bring the matter before a judge again.
The use of injunctions in this way clearly has implications for freedom of the press, but there is another issue at stake. If we are to allow judges to make privacy law (David Cameron has said he doesn’t want to, but has offered no alternative) then they are making it in a scrappy, partial way. The important cases are not coming to court, the issues are not being raised, the principles not being enunciated. We just know we can’t say things that are true without knowing quite why.
A discussion on the Lord Neuberger superinjunction report and Hemming’s naming of a famous footballer is here
The Max Mosley case in the context of Leveson Inquiry and privacy law is discussed here
The Max Mosley European Court judgment is here