Super injunctions – those that don’t just order a newspaper not to report something, but forbid it from reporting the existence of the reporting restrictions – are on the rise.
The Guardian has been served with at least 12 notices of injunctions that could not be reported so far this year, compared with six in the whole of 2006 and five the year before.
And Carter Ruck continue their kafkaesque moves to stop reporting about Trafigura and the Minton report (their latest attempt is to write to Parliament saying it can’t discuss the matter, at the same time as saying they’re not trying to forbid anyone reporting what Parliament discusses. That’s because there wouldn’t be anything to discuss).
So what does a super injunction look like? I’ve got hold of one – I obviously can’t say which and I’ve had to leave out the juicy bits. But here’s what it says.
1) XYZ and (1) A newspaper
If you the respondents disobey this order you may be held to be in contempt of court and you and / or your directors may be imprisoned, fined or have your assets seized.
Any person who knows of this order and disobeys this order or does anything which helps or permits any person to whom this order applies to breach the terms of this order may be held to be in contempt of court and may be imprisoned, fined or have their assets seized.
Notice to anyone notified of this order
You should read the terms of the Order and Guidance notes very carefully. You are advised to consult a solicitor as soon as possible. This order prohibits you from doing the acts set out on Paragraphs X and Y and obliges you to do the acts set out in Paragraph Z. You have the right to ask the Court to vary or discharge the Order. If you disobey this Order you may be found guilty of contempt of court and you may be sent to prison or fined or your assets may be seized.
And upon the first respondent / defendant undertaking that:
Until [a date] or other order, the first respondent will not use and will not publish or communicate or disclose to any other person (other than (1) by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings (2) otherwise for the purpose of these proceedings or (3) for the purpose of carring this Order into effect):
all or any part of [the forbidden information] or any information derived solely from any of [the forbidden information]; and must not cause or authorise any other person, firm or company to do any of those acts.
The court ordered as follows:
This is an injunction with other orders as set out below made against the Intended Defendants (the Respondents)
Anonymity of the applicant
Upon it appearing to the court (1) that the action is one likely to attract publicity, (2) that publicity revealing the identity of the applicants is likely unfairly to damage the interests of the applicants and (3) that accordingly publication of details revealing the applicant’s identity ought to be prohibited And pursuant to the Contempt of COurt Act 1981, section 11, the CPR Rules 5.4 and 39.2(4) and the inherent jurisdiction of the court until (Date) or other order:
(a) The application hearing to which this order relates was held in private and the publication of all information relating to these proceedings or of information describing them or the intended claim is expressly prohibited.
(b) There may be substituted for all purposes in this action in place of references to the applicants by name and whether orally or in writing, references to this letters XYZ.
(c) To the extent necessary to conceal the identity of the applicants, any other references, whether to persons or to places or otherwise, be adjusted appropriately, with leave to the parties to apply in default of agreement as to the matter of such adjustment.
Access to documents on court file
Pursuant to CPR 5.4(7) the court file will be sealed and no copies of the court file will be provided to a non party without further order from the court. Any non party seeking access to or copies of the documentation must make an application to the court, proper notice of which must be given to the applicants’ solicitors.
Until [a date] or other order, the first respondent must not use and must not publish or communicate or disclose to any other person (other than (1) by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings (2) otherwise for the purpose of these proceedings or (3) for the purpose of carring this Order into effect):
(1) the information that that the applicants have obtained an injunction and/or (2) the existence of these proceedings and/or (3) the applicants’ interest in these proceedings; and must not cause or authorise any other person, firm or company to do any of those acts.
Parties other than the applicant and the respondent
It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized.