'The super injunction: an invention of imaginative lawyers and judges who have forgotten basic equity law'

Journalists should expose the super injunction as an unlawful fallacy, argues Barry Turner, senior lecturer in media law at the University of Lincoln. This article originally appeared on thelinc.co.uk.

The media has in recent weeks complained of a use of injunctions to not only prevent publication of controversial stories but to stifle the very discussion of the injunction itself.

This has finally come to a head after such a gagging order was sought to save a premiership footballer from embarrassing revelations in the tabloid press. Justice Minister Jack Straw has finally decided that it is time for parliament to intervene in this gross abuse of legal process.

Applications made to the courts by zealous and powerful defamation and 'privacy' lawyers have been granted by judges who seem to have forgotten the very nature of the relationship between the press and the courts, and who have more disturbingly forgotten that an injunction is an equitable remedy and not a legal right.

The recent action against the Guardian to stifle stories about an oil company went to extraordinary lengths, well beyond any idea of protecting the applicant's privacy and equitable interests.

The lawyers for the claimant were not only seeking to prevent adverse commentaries on the company's activities but sought to injunct any kind of debate about the issue being raised in parliament.

Such an application defies credibility and represents arrogance on the part of the applicant and their lawyers. The most remarkable feature of these applications is that they are given any credibility at all.

The injunction is a well established and commonly used legal tool to prevent an individual suffering a wrong and to prevent a wrongdoer form evading responsibilities. Properly used in the spirit of the English legal system's concept of equity it is a remedy to be applauded. When used in less than good faith it represents a fundamental threat to freedom of expression that should not be tolerated in a pluralist democracy.

Equity is a cornerstone of English law, enabling judges to apply the law fairly. It is a tradition centuries old that has served those who seek redress in the courts. The reason it is such an invaluable tool is because it is discretionary and need not slavishly follow the more rigid legal rules of our system. But the super injunction is in clear violation of judicial discretion and the spirit of equity.

The nature of the super injunction attempts to entirely stifle debate by acting not only on individual journalists, newspapers, or broadcasters, but silencing all who may wish to comment of the issues injuncted. But Equity is a right in personam, an equitable remedy can only be directed at individuals who by their acts may be committing a tort. A judge granting a super injunction against all and sundry is breaking the rules of equity themselves.

In American Cyanamid v Ethicon the House of Lords made clear that the injunction as an equitable remedy can only be used when there is a cause of action, a triable case. In another pivotal decision on injunctions the former master of the Rolls Sir John Donaldson declared that the court may disregard fanciful claims. A claim that a national newspaper may not discuss questions in parliament regarding an injunction is about as fanciful as it gets.

The rules of equity in the main mitigate against the granting of injunctions. Great drafts of the common law on both equity and freedom of expression urge caution on judges before taking this step.

The super injunction is an invention of imaginative lawyers and judges who have forgotten the very basics of the law of equity. Very sadly, the myth is perpetuated by journalists who chose to use the expression without simultaneously dismissing it as a fallacy.

Super injunctions deny the supremacy of parliament. They deny the authority of statute and treaty (ECHR Art.10 Human Rights Act 1998 s.12), they defy absolute privilege, they abuse the purpose of the sub judice rule, they are an abuse of the legal process, and they are contemptuous of parliament.

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