by Dennis Kavanagh
If you asked John Selden back in the 1600s what he thought of super-injunctions, he may well have said: “Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor”.
He went onto say that he didn’t know the length of the chancellor’s foot and that’s a bit like an uncertain law. Times change, and with all due respect to Johnny, I’m not sure I want to ask our lord chancellor, Ken Clarke, what his shoe size is in case he thinks I’m coming onto him. Our modern day answer to Selden came in the form of John Hemming MP yesterday when he revealed that Ryan Giggs had secured a super injunction against a former Miss Wales.
He justified the intervention on the basis that Giggs’ lawyers were going for the Twitterati, and managed to upset the Speaker, Nick Clegg and the high court in the process. Upsetting Nick Clegg is a noble goal, it is a shame that this important constitutional debate is circling round the tabloid drain of “guess who’s sleeping with whom this week”. That said, before we walk away from the tabloid sewer with our noses held tightly, it’s worth recognising that some serious issues are at stake.
As Lord Neuberger pointed out, we expect courts to be transparent and open, we expect information to flow unfettered; and our confidence in institutions is directly proportional to whether we think they’re holding back on us. It’s why people generally trust jury trials but not family courts – we tend to assume that secrecy is only necessary if you’ve got something to hide. It would be interesting to know to which companies the department of health is considering selling off the blood transfusion service, but “commercial confidentiality” stops that.
I’d like to have known what the Minton report on the toxicity of waste dumped by Trafigura said in 2009, but a superinjunction against the BBC and Guardian based on legal privilege was ordered. I’d like to know whether an innocent party is being blackmailed, or if serious financial irregularities are going on in the shadowy ZAM litigation, but a highly unusual superinjunction, extremely rare in the law of defamation, is in place.
Before the Tories bung the human rights act in the shredder, bear in mind that not one of those three cases is in fact a human rights case. Secrecy, suppression and superinjunctions were flourishing long before the Daily Mail started talking up the HRA as some sort of charter for asylum seeking, benefit scrounging paedophiles.
That said, Ian Hislop is right that human rights challenges gradually develop caselaw on superinjunctions and create a judicial climate where claimants are more likely to seek them. Today’s three in a bed footballer’s romp can be tomorrow’s precedent for withholding information in the public interest.
This is particularly worrying when bullyboy tactics and libel writs fly around like confetti down the more paramilitary end of the defamation market. Precisely the same culture that protects the Giggs of this world also silenced Dr Simon Singh’s legitimate expression of opinion against the British chiropractic association. The UK is the libel claimant’s forum of choice, and some of the draconian sanctions on offer should give us all pause for thought, particularly when you consider how costly, lengthy and draining defending an action can be.
Article 8 family and private life law really only got going in 2000, and governments are guilty of ignoring the growing discontent on this Judge-made body of law. Labour needs a strong voice on this important issue and the forthcoming review announced yesterday by the attorney general. The public are sick of funding a rich man’s game, so the case for corporate contributions to the costs of long court cases should be made. Repayable grants for people defending legitimate actions, like Dr. Singh, should be made available, otherwise, being on the wrong end of a libel writ effectively means kissing your house and any savings goodbye. Media access to court cases as recommended by Lord Neuberger should be embraced. Specific Parliamentary guidance on Article 8 needs to be put in place to fairly draw the line between those who make and apply the law.
From the Spycatcher case onwards, the restriction of information has depended on public consent. If the restrictions and sanctions are ridiculous, 75,000 twitter users will probably point that out. Even if they don’t care who Ryan Giggs was bedding.
Dennis Kavanagh is a barrister.