Obtaining Injunctions ... or How to Apply the Methods of the Spanish Inquisition

 

Our two weapons are fear and surprise … and ruthless efficiency.

Cardinal Ximinez(1)

Applications for an interim injunction are great fun (if you win), exhilarating, and the nearest legal equivalent to accident and emergency surgery.

It is not uncommon for initial instructions to come from a friend, solicitor or agent of the person concerned but it is vital to establish and hold a direct line of communication with the client and obtain direct instructions.

Initial Assessment

In many cases it is clear to the lawyer, within minutes of taking instructions, whether or not the exercise may be worth while or is likely to be successful and, if it is, it is important to explain to the client:

1. the risks of it going wrong; and
   
   
2. the risks of it going right!

If a client unsuccessfully applies for an injunction it may well draw more attention to the libel or breach of confidence than leaving it alone. The client should be told to foresee headlines such as "The story he tried to ban" or "The photographs they didn't want you to see". A client will also need to be given the best possible idea of the likely costs of both sides and the solicitor needs to be sure that if he is going to instruct counsel he will be covered for their fees by the client!

As to the risks of it going right, a solicitor must explain to the client that if he obtains an injunction it will be necessary to issue proceedings and pursue them vigorously until trial or settlement. Additionally, and most importantly it is necessary to explain the "cross undertaking as to damages" to the client. The position is this. If the client obtains an interim injunction but subsequently the case goes to trial and he fails to obtain a final order the defendant can maintain that he was restrained unjustly and will generally be entitled to damages for any losses that have been sustained. At one end of the scale are advertising and potential syndication losses for the defendant together with the loss of being able to capitalise on an exclusive. In the middle of the scale are the costs of reprinting and/or pulping of books and towards the bottom end of the scale, and probably de minimis, is the potential exposure when obtaining an injunction against publication on the Internet. Pulping and reprinting a book is surprisingly cheap in the context of litigation and the evidence of a friendly printer or publisher is often useful where the size of the cross-undertaking is important.

Having briefly explained the law to the client (see later) it is time to proceed with the first two weapons of the Spanish Inquisition. Fear, surprise and ruthless efficiency.

Practical Matters

Depending upon the urgency and importance of the matter it may be necessary to throw a team of 2-4 lawyers together. The trainee or assistant should sit in on telephone calls or meetings as the partner will have precious little time for attendance notes or confirming advice in writing. The assistant can also draft the application notice, the draft order to put before the court as well as a bundle of evidence.

Having dealt with the law, the risks, the money and the outline of the evidence (and if time permits) it is time to fire off some letters.

In the case of publication on the Internet the person responsible for the libel or breach of confidence will need to be notified immediately(2) as well as the Internet service provider. In cases involving books or magazines the publisher will need to be notified as will the leading booksellers, as part of a pincer movement.

There are a number of reasons for contacting the ISPs or booksellers. First, as soon as they are on notice they will lose the protection of section 1 of the 1996 Defamation Act(3). Secondly, they may well decide to take down the Internet page or remove the book or magazine from the shelves until the dust settles (in which case a huge amount will have already been achieved with just one letter) and thirdly they will know that continued publication, following notice of the libel or breach of confidence, may well attract a claim for exemplary damages. This is the weapon of fear.

In order to obtain an injunction it will be necessary to persuade the court that there is a real risk of further publication. For that reason it is often useful to demand an undertaking from the publishers that they will not publish the words complained of or breach the confidence of your client. The time given to the other side can be tailored to the length of time it will take you and your legal team to put together the evidence in writing. (In the most extreme cases "evidence" can be given by counsel on the client's undertaking to file a witness statement verifying what is said.) So, for example, if it is going to take the legal team one and a half hours to draft the submissions, the order, the application notice and the evidence, that could be the time when your ultimatum expires.

In this way the legal team will be ready and well prepared to apply to court immediately upon the expiration of the ultimatum. This is the weapon of surprise.

As the solicitor is putting the evidence together counsel will be checking drafts and preparing submissions as well as collating any authorities which he relies upon. In this way the claimant's legal team should be up to speed well ahead of the defendant. This is the weapon of ruthless efficiency.

The Law

Applications For An Injunction In Libel
The dice are loaded against a claimant on an interim application for an injunction. This is because of what lawyers call "the rule against prior restraint"(4) which in layman's terms can be translated as the fact that our courts will not grant an injunction to restrain freedom of speech where a defendant turns up to court and says that he will prove that the words complained of are substantially true, fair comment, responsible journalism on a matter of public interest or are published on an occasion of "qualified privilege". (For example where a director is under a duty to his board to make defamatory allegations which he believes to be true.)

"Before the event" injunctions for libel are extremely difficult to achieve and as rare as strawberries in winter. This is because of the rule in British Data Management Plc -v- Commercial Removals Plc(5) which provides that the claimant must prove, with reasonable certainty, the words of the threatened libel. In the case of a newspaper which has not yet gone to print this might prove to be almost impossible as the precise words for publication can be changed minutes before the publishing deadline. It is rare indeed for a newspaper to show the claimant a draft article although, in the case of television, documentaries are often sent out in advance to reviewers in order to obtain advance publicity.

It is for these reasons, and the fact that media defendants will fight tooth and nail to protect their freedom of expression, that libel injunctions against the media are so few and far between. However, a claimant does enjoy one advantage. An interim injunction against one defendant is binding upon everyone else under the "Spycatcher principle"(6). By selecting the financially weakest defendant (for example the source) it may improve the prospect of obtaining an injunction from a High Court Judge(7) and will bind the press unless they choose to contest the hearing at a later date or the injunction is made final, or discharged.

In freedom of speech/media cases a judge must bear in mind, where a defendant is neither present nor represented, that no injunction is to be granted unless the court is satisfied:

1. that the claimant had taken all practicable steps to notify the defendant; or
   
   
2. that there are compelling reasons why the defendant should not be notified(8).
   

Additionally, section 12(3) of the Human Rights Act 1998 provides that no injunction is to be granted unless the court is satisfied that the claimant is likely to establish that publication should not be allowed and by section 12(4) the court must have particular regard to the importance of the convention right to freedom of expression and in the case of journalistic, literary or artistic material the extent to which:

1. the material has, or is about to, become available to the public; or
   
   
2. it is, or would be in the public interest for the material to be published and any relevant privacy code.

Injunctions In Privacy
A fairly clear picture is emerging of what matters the courts consider suitable for injunction.

Examples include:

1. unauthorised "topless" shots of women taken in places where they have a reasonable expectation of privacy;
   
   
2. marital confidences(9) unless the other party to the marriage (whether dissolved or ongoing) has gone "public" already(10);
   
   
3. cases where the evidence has been obtained by underhand means(11); and
   
   
4. cases involving medical records(12).

Cases involving medical records or saucy photographs have the advantage in that the scope for a public interest defence is limited. As Mackay J stated during the course of argument in A -v- B and C(13) which concerned such photographs "I hope no one is going to waste my time claiming that there is a public interest defence in this case".

The fact that the material has previously appeared on the Internet or overseas is not a complete answer for the defendant(14).

Prior to the incorporation of the Human Rights Act judges were often guided by what they thought was "reasonable", subject to the constraints of the law, in deciding whether or not to grant an injunction. These days, lawyers must think in terms of what is "proportionate", "necessary" and whether the injunction would meet a "pressing social need" in terms of protection of reputation or privacy.

With the injunction obtained it is time for soft cushions and the comfy chair.

Nigel Tait is a partner in Carter-Ruck. Try as he might, he couldn't find a place in this article to include the 4th weapon of the Inquisition - an almost fanatical devotion to the Pope.

Footnotes

(1) aka Michael Palin

(2) see S12(2) Human Rights Act 1998 explained later in the text

(3) which provides for a defence of "innocent dissemination"

(4) Bonnard -v- Perryman [1891] 2 Ch 269

(5) [1996] 3 All ER 707

(6) AG -v- Newspaper Publishing Plc (1988) 1 Ch 333

(7)"nice red uniforms" are the 5th element of the weaponary!

(8) S12(2) Human Rights Act 1998

(9) eg Argyll (Duchess) -v- Argyll (Duke) (1967) Ch 302

(10) Lennon -v- News Group Newspapers Limited [1998] FSR 573

(11) Francome -v- Mirror Group Newspapers Ltd [1984] 1 WLR 892 (although this is not a conclusive factor)

(12) eg Deayton -v- Associated Newspapers (unreported)

(13) (QBD 1 March 2001)

(14) Venables -v- News Group Newspapers Ltd [2001] Fam 430