Superinjunctions

If you asked John Selden back in the 1600s what he thought of super-injunctions he may well have said: ‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor”. He went onto say that he didn’t know the length of the chancellor’s foot and that’s a bit like an uncertain law. Times change, and with all due respect to Johnny I’m not sure I want to ask our Lord Chancellor, Ken Clarke, what his shoe size is in case he thinks I’m coming onto him. Our modern day answer to Selden came in the form of John Hemming MP yesterday when he revealed Ryan Giggs had secured a super injunction against a former Miss Wales. He justified the intervention on the basis that Giggs’ lawyers were going for the Twitterati and managed to upset the Speaker, Nick Clegg and the High Court in the process. While I would normally describe upsetting Nick Clegg as a noble goal it’s a shame this important constitutional debate is circling round the tabloid drain of “guess who’s sleeping with who this week”. That said, before we walk away from the tabloid sewer with our noses held tightly it’s worth recognising that some serious issues are at stake here.

As Lord Neuberger pointed out we expect courts to be transparent and open, we expect information to flow unfettered and our confidence in institutions is directly proportional to whether we think they’re holding back on us. It’s why people in general trust Jury trials but not Family Courts  – we tend to assume secrecy is only necessary if you’ve got something to hide. I’d like to know which companies the Department of Health are considering selling off the Blood Transfusion service to, but “commercial confidentiality” stops that. I’d like to have known what the Minton report on the toxicity of waste dumped by Trafigura said in 2009, but a superinjunction against the BBC and Guardian based on legal privilege was ordered. I’d like to know whether an innocent party is being blackmailed, or if serious financial irregularities are going on in the shadowy ZAM litigation, but a highly unusual superinjunction, extremely rare in the law of defamation is in place.  Before the Tories bung the Human Rights Act in the shredder bear in mind not one of those three cases is in fact a Human Rights case. Secrecy, suppression and superinjunctions were flourishing long before the Daily Mail started talking up the HRA as some sort of charter for asylum seeking, benefit scrounging paedophiles.

That said, Ian Hislop rightly makes the point that Human Rights challenges gradually develop caselaw on superinjunctions and create a judicial climate where Claimants are more likely to seek them. Today’s three in a bed footballer’s romp can be tomorrow’s precedent for withholding information in the public interest. This is particularly worrying when bullyboy tactics and libel writs fly around like confetti down the more paramilitary end of the defamation market. Precisely the same culture that protects the Giggs of this world also silenced Dr Simon Singh’s legitimate expression of opinion against the British Chiropractic Association. The UK is the libel claimant’s forum of choice, and some of the draconian sanctions on offer should give us all pause for thought, particularly when you consider how costly, lengthy and draining defending an action can be.

Article 8 family and private life law really only got going in 2000 and governments are guilty of ignoring the growing discontent on this Judge-made body of law. The opposition needs to ensure a strong public interest voice in the reforms and should push for greater intervening rights for those claiming them. We could do with unsuccessful celebrities after secrecy funding the running costs of courts to abolish rich man’s justice and repayable special grants of assistance for people defending legitimate actions, like Dr. Singh should be made available to ensure that defending libel action isn’t effectively signing your house and life away. Media access as per Lord Neuberger’s recommendations should be embraced and specific parliamentary guidance on domestic interpretation of Article 8 needs to be put in place to fairly draw the line between those who make and apply the law.  

Spycatcher onwards has demonstrated that restriction of information depends on the public consent, if the restrictions and sanctions are ridiculous, 75,000 twitter users will probably point that out even if they didn’t care who Ryan Giggs was bedding.