On 16 March 2011, Lord Neuberger, the Master of the Rolls, gave the Judicial Studies Board Annual Lecture entitled “Open Justice Unbound?”. The full speech is available on the judiciary website here. Although he covers a number of areas in this talk, I want to look at what he has to say on the issue of superinjunctions which has so vexed the media and on occasion politicians.
One aspect of this issue was covered in my post on the case of Ntuli v Donald ([2010] EWCA Civ 1276). Readers will recall that the Master of the Rolls is chairing a committee on super injunctions, and it includes judges, barristers, and solicitors representing both the press and claimants and should be published in the next few weeks. His speech may possibly give a hint about the contents of the forthcoming report. Interestingly, unlike most of the tabloid press, he does not conflate superinjunctions with anonymisation:
A super injunction is simply an interim injunction whose purpose is to restrain a person from publishing information which the claimant contends is private or confidential in nature. Traditionally, the most common example of such an injunction was to protect commercial secrets. What makes an injunction a super injunction is that it also restrains publication of the fact that the injunction has been sought and made and the very fact that proceedings are ongoing. Such injunctions can obviously only be granted where there is information which is capable of being legally protected. Super injunctions like any other injunction can only be granted in support of substantive legal rights. They do not determine those rights. They simply exist, as all interim injunctions do, to ensure that the proper administration of justice is not frustrated pending trial and final judgment.
For instance, if a claimant is entitled to an injunction restraining publication of a story that he (and it almost always is “he”) has had a sexual relationship with a third party, then it would be literally absurd if open justice prevented him from stopping the press reporting that he had obtained an injunction restraining publication of a story that he had had such a relationship. Thus, once one accepts that the court has power to grant an injunction restraining a breach of privacy, it has to follow that the court has the ancillary power to restrain publication of details of the injunction proceedings, application, hearing, proceedings or order.
Lord Neuberger recognises the concern about secret justice in these terms:
The concern over super injunctions is that they have, as Professor Zuckerman has put it, developed into a form of entirely secret form of procedure. As he put it, ‘English administration of justice has not (previously) allowed’, that is ‘for the entire legal process to be conducted out of the public view and for its very existence to be kept permanently secret under pain of contempt.
‘English law has not known of such a procedure – of secret justice – since 5 July 1641, when the Long Parliament abolished the Court of Star Chamber.
He explains that this concern was reflected in the judgment in the Ntuli case by the Vice-President of the Court of Appeal, Lord Justice Maurice Kay, in his statement “that the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which [the claimant] is entitled.”
The Master of the Rolls then turns to the distinct issue of anonymisation covered authoritively in the JIH case of the Court of Appeal where he, the Vice-President, and Lady Justice Smith set out
“ten important items of principle and practice, based on those identified by Tugendhat J, with a view to minimising the inroads made on open justice when there is a need for some sort of reporting restrictions, whether it is the grant of anonymity to parties, limiting or excluding the reporting of the subject-matter of the case or other limitations.”
He concludes on this topic:
The case involved the grant of an injunction restraining the publication of alleged sexual activity of an international sportsman. The issue was whether we should let the name of the sportsman be published, in which case we would have had to ban publication of details of the story, or grant the sportsman anonymity, in which case the basic nature of the story could be published. Partly because, in the light of the history, naming the sportsman might well have enabled people to work out the nature of the story, we decided to grant him anonymity. But this was also arguably justified by the point that the public interest is better served by knowing about the type of case which is coming before the courts, and the types of case in which reporting restrictions are being granted, than by knowing which famous sportsman is seeking an injunction for wholly unspecified relief. In this connection, there may well be a difference between what is in the public interest to know and what the public want to know – or perhaps what some newspapers want the public to want to know.
Charlotte Harris is a partner at Mishcon de Reya.
Having now read the speech, it appears para 1-4, 56 & 57 are also important with regard to super injunctions and the increasing secrecy of the courts in general. It is truly astonishing that the common law principle of open justice in England goes back over 822 years and yet here we are in 2011 discussing it. Are we going forwards ro backwards? It is not clear to me.
Lord Neuberger said:
(1) Introduction
“1. We live in a country which is committed to the rule of law. Central to that commitment is
that justice is done in public – that what goes on in court and what the courts decide is open
to scrutiny1. This is not a new fundamental principle. In 1829, for instance, Bayley J in
Daubney v Cooper said this,
‘. . . we are all of the opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be in public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, – provided they do not interrupt the proceedings and provided there is no specific reason why they should be removed – have the right to be present for the purpose of hearing what is going on.2’
2. Of course, it goes back further than that: as one 20th century commentator put it, “[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial.3”
Time immemorial means, of course, older than 6 July 1189, the date of King Richard the First’s accession to the throne4, although the date is not so much a tribute to him, as to his father, King Henry the Second, whom he succeeded. So it is a common law principle which stretches back into the common law’s earliest period.
3.
The importance of open justice as a fundamental principle has not only secured its place in our legal system. It has also secured its place in the legal systems of all those countries which are signatories to the European Convention on Human Rights. Article 6 of the Convention was specifically drafted5 to replicate the House of Lords’ ringing affirmation of open justice in the seminal early twentieth century decision of the House of Lords in Scott v Scott6. In that case, Lord Shaw described how open justice was ‘a sound and very sacred part of the constitution of the country and the administration of justice. . .7’The principle is equally embedded into the framework of all common law systems; not least the United States, where, in 1791, it was enshrined as a constitutional right by the 6th amendment8. It is as important as it is well-travelled and long-lived.
4.
The importance of open justice arises from the role it plays in supporting the rule of law. Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law. This evening, I would like to focus on three discrete and currently relevant aspects of this constitutional principle.”
and…..
“56.
The development of both closed proceedings and the debate regarding super injunctions highlights a number of things. First, the disquiet about both demonstrates how deeply ingrained is our commitment, as a society, to open justice. It underlines Lord Shaw’s point that open justice is a sacred part of our constitution and our administration of justice. But it also shows something else. It highlights how, in certain, narrowly defined circumstances, the general principle can, indeed must, be set aside and how in some circumstances both Parliament and the courts have done so.
57.
It can be set aside because open justice is subject to a higher principle: that being, as Lord Haldane LC put it in Scott v Scott, the ‘yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done40’ Where publicity, through the unqualified adherence to the general principle of open justice would ‘frustrate or render impracticable the administration of justice . . .’41 then publicity must yield. As mentioned, an injunction protecting information pending trial would be pointless if the very information to be protected had to be disclosed publicly in order to obtain the injunction, and national security might be endangered if certain information had to be disclosed in open court. Open justice must however yield no more than strictly necessary to secure the achievement of the proper administration of justice. Where it goes beyond what is strictly necessary then we run the risk that the courts are no longer open to proper scrutiny, that their role in supporting democracy and the rule of law is undermined.”
Since he also said that “In an age when it seems more likely than ever that citizens will have to represent themselves…”, it would have been helpful if he had addressed how the Civil Procedure Rules relate to the common law principle of open justice and Articles 6, 8 & 10. In particular, CPR 1, 5.4c & 39. I, for one, a rather experienced litigant in person, remain confused. It has appeared to me that Article 8 is being misused and abused to grant 5.4c orders and private hearings, as well as super injunctions.
And conversely, CPR 39 has often conveniently been ignored when it should not, such as on the first ex-parte hearing for an injunction under The Harassment Act 1997. Incidentally, The Harassment Act itself appears to violate Article 10. What if something is already in the public domain? And what if the claim is a libel claim? Certainly, it is wholly unjust for any libel claim hearings to be held in private or for their relevant court files to be sealed with 5.4c orders, unless possibly requested by the claimant for exceptional reasons.
The line between libel and privacy needs to be clearly drawn. Reputation is as much a human right as privacy under Article 8, as confirmed by Strasbourg. Those seeking privacy orders or super injunctions should be subject to a type of disclosure before doing so, as required in general for injunctions. Is any part of their income subject to the information they want private? Are they trying to protect their privacy at the expense of another’s reputation? Are they trying to obstruct justice? Cover up misdeeds while denying another freedom of expression under Article 10? What is the motive for seeking the order?
I certainly hope the upcoming report on super injunctions addresses the general and increasing trend towards secrecy in the courts and not just the super injunction order itself.