What to know about court orders, injunctions, and super-injunctions

A general introduction to the coercive powers of the court to order things, and what can be done with those powers

Imagine the polity of the United Kingdom as so many machines.

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There is the machine of the Crown, and - from a legal perspective - what comes out are various legal instruments enforceable and/or recognised at law: proclamations, decrees, royal charters, royal warrants, privy council regulations, and so on.

Each instrument following a certain form and even ceremony, with certain ‘abracadabra’ magical wording, and the document exists at law.

And because that document is capable of making things happen, it is called an instrument.

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There is then the machine of Parliament, and - again from a legal perspective, what comes out are Acts of Parliament.

In a technical way these are a subset of documents from the Crown machine, as an Act of Parliament is not enforceable and/or recognised at law unless it has Royal Assent. It is in this way just another legal instrument signed by the Crown.

But Acts of Parliament can have general, even universal effect, and so are in a category of their own.

Note that other things done by Parliament - such as passing motions and resolutions - do not normally have effect outside of the Palace of Westminster (if at all).

And so when one talks of the sovereignty (or more correctly the supremacy) of Parliament, one usually means the sovereignty (or supremacy) of Parliamentary legislation.

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And then there is the judiciary machine.

To an onlooker (and indeed many lawyers) the outputs of the judiciary machine are the judgments and sentencing remarks. And indeed the reports of judgments and remarks are central to understanding laws and legal systems around the world.

But.

The main outputs of the judiciary machine are not judgments or sentencing remarks: they are at one or two steps removed.

The main outputs of the judiciary machine are Orders.

(There are other judicial outputs such as writs and summons and warrants.)

It is the Orders that have legal effect, that are enforceable and/or recognised at law.

Judgments and sentencing remarks are all very interesting and informative, but it is the Order that is the thing.

A judgment should explain why the court made one Order instead of another, why a case was disposed of in one way rather than another.

As such, judgments can be integral to understand what has gone with a case, but it is still the resultant Order that is the thing.

Orders are thereby for courts, what Acts are for Parliament, and charters and so on are for the Crown.

They are the things which come out of the judiciary machine, at least from a legal perspective.

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Orders can take many forms, but the form of Order which comes up most often in the news is the injunction.

An injunction is - very generally - a court Order which tells a person to do a thing or not do a thing, on pain of it being punishable as a contempt of court.

The classic historical-legal theory is that an injunction is there so as to ensure a person acts in accordance with their conscience: to do or not do a thing they ought or ought not to do.

Injunctions usually are either ‘final’ or ‘interim’/’temporary’. The latter are often used by courts to ‘hold the ring’ until a legal matter can be finally disposed of by the court: to keep things in a virtual legal state of suspended animation for the time being.

The normal position is that an injunction can be imposed on a party to litigation.

Here [A] is suing [B] for say breach of contract or an intellectual property infringement, and [A] wants to stop [B] for causing any further damage until the trial.

(Sometimes it may turn out that [B] has been injuncted when [A]’s case does not succeed at trial, and in those situations [A] must make good the damage and costs caused to [B] complying with the injunction. As such injunctions can be double-edged legal weapons. In legal practice, injunctions are the sort of things you 'don’t try at home’ and should be left to the professionals. Injunctions can cut in unexpected and painful ways.)

Sometimes a party will want a permanent, final injunction - but generally (at least in England) injunctions are a means to an end and the final remedy at court will usually be damages.

A party breaching the injunction faces punishment (and there is a legal debate whether such punishments are criminal as such) which can include imprisonment.

A person guilty of contempt will then be expected - to use a quite lovely legal word - to ‘purge’ their contempt.

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Injunctions, however, may not only be against a party to legal case.

They can also be granted against third parties.

In England such injunctions are not at all unusual - and the courts have developed all sorts of freezing orders and search orders where third parties caught up in a situation can be obliged to comply with court orders.

Sometimes such injunctions can be made against persons unknown (for example trespassers) or even ‘contra mundum’ (against the world).

Obviously there is practical difficulty in showing a person is aware of such an order, and the normal position is that a person is not bound by an Order unless they have (or should be expected to have) notice of the Order.

That is why injunction notices are tied to fences or emailed to legal departments of newspapers, and so on.

The injunction in the recent Afghan case was applied by the government to be ‘contra mundum’ order:

As a subsequent judgment in the same case described:

If a person has notice of a contra mundum notice then they are as bound by it as any party to the litigation.

An affected third party can have protections built in to the Order - and can also apply to the court to have the Order amended or discharged. But in practical terms the third party has little choice but to comply.

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There is a further way to super-charge an injunction, by giving it is a special super power (though this is rare for contra mundum injunctions).

A court can turn an injunction into…

…a super-injunction.

In a super-injunction it is a term of the Order that the existence of the Order itself cannot be disclosed.

In the recent Afghan data breach case, there was a super-injunction. A judge in the case described it as follows:

Originally the super-injunction in that case was not published with the raft of documents released last week.

But following a request from this blog, the Order was published.

The “super” element of the Order is at paragraphs 4(b) and (c):

A non “super” version would have 4(a) and no mention of 4(b) in the final sub-paragraph.

If you go to front page of that Order you will see the penal notice, to warn those of the dire consequences of any breach:

Such an Order is thereby not to be taken lightly, and they are not taken lightly by any responsible person.

Super-injunctions were briefly common about 2010 as a means of protecting the claimant when they were suing for the then new tort of misuse of private information, but media and political controversy meant that the courts moved away from granting them.

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The Afghan data breach case injunction was both a contra mundum injunction *and* a super-injunction.

As such it was an exotic legal creature, the sort which are sometimes speculated about, but rarely spotted in reality.

But even if they are exceptional the components are straightforward:

(1) it was an interim injunction that

(2) was addressed to anyone who had notice of it which

(3) had as one of its terms that the injunction should not be revealed beyond those who had notice of it.

Such injunctions can exist - and some would say that they have their place in exceptional situations.

But one question is whether it was appropriately granted in this situation - and, if so, whether its terms should have been discharged or varied sooner.

And another question is whether in this situation such an injunction stymied legitimate public knowledge and political/media scrutiny of the government by parliament.

For sometimes even the judiciary machine fails to function properly.