http://blog.oup.com/2011/06/superinjunctions/ Academic insights for the thinking world. Tue, 18 Jun 2013 14:01:09 +0000 hourly 1 http://wordpress.org/?v=3.4.2 http://blog.oup.com/2011/06/superinjunctions/#comment-222829 Mark Warby QC Thu, 09 Jun 2011 11:47:12 +0000 http://blog.oup.com/?p=16817#comment-222829 Two points. First, the use of the label 'super-injunction', and secondly the Trafigura case. The term 'super-injunction' is what some philosophers call a 'boo word': it casts a negative shadow over whatever it is applied to. As you say, David, the term was initially coined, by someone, to describe an order that prohibits reporting of the very existence of the case. The fact is, as has gradually emerged even in the public press, that there have been very few indeed of these. So now 'super-injunction' has come to be applied to any injunction which anonymises the claimant. It is hard to know, though, what critics think the courts should do if they find that a claimant deserves protection. If they both name the claimant and, in a judgment, describe the information that must not be published, the exercise is pointless. If the claimant is named, the information that is protected cannot be put in a judgment. Is that what critics would prefer? As for Trafigura, the case has been widely misreported. The Master of the Rolls Committee's report sets out the facts. Mr Farrelly MP disclosed the information the court had held should be protected, at a time when a further hearing was due to be held in court. The MP was allowed to do this by the Parliamentary authorities, but only because the effect of anonymising the claimants was that the authorities had failed to pick up the fact that the case was pending. Otherwise, the Speaker probably would have ruled out the question, leaving it to the court to decide whether the injunction should continue. It is also worth noting that the injunction was quite specific, and did not bar disclosure of allegations about waste dumping, but disclosure of a specific, legally privileged, report on the issue. It seems we will never know what decision the court would have reached if the issue had been argued. Two points. First, the use of the label ‘super-injunction’, and secondly the Trafigura case. The term ‘super-injunction’ is what some philosophers call a ‘boo word’: it casts a negative shadow over whatever it is applied to. As you say, David, the term was initially coined, by someone, to describe an order that prohibits reporting of the very existence of the case. The fact is, as has gradually emerged even in the public press, that there have been very few indeed of these. So now ‘super-injunction’ has come to be applied to any injunction which anonymises the claimant. It is hard to know, though, what critics think the courts should do if they find that a claimant deserves protection. If they both name the claimant and, in a judgment, describe the information that must not be published, the exercise is pointless. If the claimant is named, the information that is protected cannot be put in a judgment. Is that what critics would prefer? As for Trafigura, the case has been widely misreported. The Master of the Rolls Committee’s report sets out the facts. Mr Farrelly MP disclosed the information the court had held should be protected, at a time when a further hearing was due to be held in court. The MP was allowed to do this by the Parliamentary authorities, but only because the effect of anonymising the claimants was that the authorities had failed to pick up the fact that the case was pending. Otherwise, the Speaker probably would have ruled out the question, leaving it to the court to decide whether the injunction should continue. It is also worth noting that the injunction was quite specific, and did not bar disclosure of allegations about waste dumping, but disclosure of a specific, legally privileged, report on the issue. It seems we will never know what decision the court would have reached if the issue had been argued.

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