Privacy and Injunctions - Evidence - Parliament

The Rt Hon. the Lord Neuberger of Abbotsbury and Mr Justice Tugendhat—Oral evidence
(QQ 486–535)
Q486 Mr Llwyd: You will know that part of our function is to look overall at the
issues regarding injunctions, and so on. I know that so-called super-injunctions are
few and far between, but are they still being granted, and, if so, roughly how often?
Lord Neuberger of Abbotsbury: Mr Justice Tugendhat is closer to the coal face and is
probably better able to answer that.
Mr Justice Tugendhat: To my knowledge, none has been granted since the one or
two referred to in the super-injunctions report in relation, I stress, to confidentiality or
privacy. As you know from the report, so-called super-injunctions are a feature of what used
to be called Anton Piller or search orders, and they are attached to a number of other
injunctions for anti-tipping-off reasons. They continue to be granted in appropriate cases in
that context.
Q487 Mr Llwyd: How many applications for privacy injunctions succeed, in the
sense that some injunctive relief is granted?
Mr Justice Tugendhat: At the initial stage, if they are without notice, which is very
rare, they generally succeed, even if they ought not to. As to those on notice, they generally
succeed, but they are expensive and risky things to bring. If the case is not one that is likely
to succeed it would be surprising if experienced lawyers brought them, so I do not find
anything surprising in the fact that the majority succeed.
Lord Neuberger of Abbotsbury: First, a judge who is faced with an application for a
privacy injunction without notice will want to make quite sure that it is appropriate to grant
it without notice and, if it is not appropriate, should send the applicant away to give the
other side notice. Second, it is often the case that, when it is with notice and the other side
turns up—Mr Justice Tugendhat will correct me if I am wrong—the respondent to the
application agrees that the injunction should go ahead, or at least does not oppose the grant
of it.
Mr Justice Tugendhat: That is absolutely right. One of the features of this
jurisdiction is that it is extremely rare for defendants to these applications to raise any
objection. The most conspicuous example is the story I set out in as much detail as I could in
the Goodwin injunction, explaining how it is that you have a series of these applications and
orders without anybody, whether it be the defendant or intervener, raising any objection. All
of the orders set out in their terms that anybody who is affected can apply to vary or
discharge the order. If the order is obtained, it is usually the case, not always, that the
purpose is to serve it on third parties, such as newspapers, and the occasions when anybody
intervenes are rare in the extreme.
Q488 Mr Llwyd:Generally speaking, the proceedings are of an interlocutory
nature. Do we take it that in every application there is a specified return date? In how many
cases is there a further hearing on that return date, or at all?
Mr Justice Tugendhat: I am sure that for over a year all applications have included a
return date. The reason some did not in earlier periods was not out of neglect; it was
because it seemed so obvious that there would be no point in a return date that the judge
did not want to put the claimant to the additional expense of going through that formality. In
retrospect, it has been seen that the judge is not in as good a position as he might have
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