Perhaps the most surprising thing about waking up on a Sunday morning in May to be faced with a Sunday paper featuring a close-up photograph of a well-known footballer’s face was that its publication seemed to take everyone by surprise.
By the time the Sunday Herald went to print identifying the individual footballer at the centre of the ongoing privacy injunction row in England, there had been plenty of time for all the parties concerned to consider their position. Perhaps it was just a case of not seeing the wood for the tweets. So much attention was focused on alleged breaches of the injunction by bloggers and the ‘twitterati’, and so much consideration given to the difficulties English courts would have in enforcing injunctions, that the existence of separate legal systems within the UK seemed to be overlooked once again.
Spycatcher and related sagas
Similar problems (without the excuse of having to deal with new technology) were encountered back in the mid-to-late 1980s, when the UK government sought to prevent publication of Spycatcher, a (none too thrilling) book detailing the exploits of Peter Wright, an ex-MI5 officer. While English newspapers battled to be allowed to print the details, the book itself remained on sale in Scotland and elsewhere around the world. The subsequent breach by TheSunday Times of an injunction granted in England led all the way to the House of Lords. The decision in Attorney General v Times Newspapers Ltd  (the Sunday Times case) confirmed that, in England at least, knowledge of the existence of an injunction was sufficient to prevent publication by parties who were not themselves named in the injunction. Publication was eventually allowed in England after the book had appeared in print in both Australia and the US.
In Scotland, however, interdict has always been ‘personal’ and aimed at the particular party who has threatened to breach another’s rights. Ordinarily, an interim interdict will be formally served on the interdicted party and urgent attempts are always made to affect service as soon as possible. However, the less formal intimation and knowledge of the existence of the interdict is probably sufficient.
No sooner had the fuss over Spycatcher started to die away than the issue came to the fore in another intelligence-related case, Lord Advocate v Scotsman Publications .The Sunday Times in England had been served with an injunction preventing publication of the memoirs of Anthony Cavendish, a former intelligence officer. The injunction applied to ‘any person having notice of this order’. The Scotsman published extracts north of the border and, this time, the government went to the Court of Session and sought an interim interdict in identical terms to that granted in England. Although initially granted, it was recalled after the court heard fuller arguments. Government appeals against that decision to the Inner House and House of Lords failed.
In reaching its decision the Inner House made it clear that interdicts (whether permanent or pronounced on an interim basis) remained personal in Scots law. It is incompetent to grant an interdict against ‘any other persons having notice of said [interdict]’, it being a ‘cardinal feature’ of Scots law that an interdict should be directed against specific individuals. They left open the question of whether the obvious lacuna was capable of being filled by the existing law on contempt of court. The suggestion seemed to be that, as in England, an interdict might be effective against unnamed parties under the general heading of contempt of court – the theory being that deliberate publication in the face of a known interdict undermines the authority of the court. The distinction may be a fine one but being in contempt of court for taking steps to undermine an interim interdict granted against some other third party is not the same as being in direct breach of an interdict directed against yourself in an action to which you are a party. There seems no logical reason why the two concepts cannot co-exist.
Enforcing injunctions in Scotland
All this has been thrown into sharp relief once again by the row over privacy and injunctions in England – in particular, the apparent failure to secure a parallel interim interdict in Scotland with the result that The Sunday Herald felt able to publish material that would have breached the terms of an injunction had they done so in England.
When going to print they made it clear that they were going to some lengths to avoid publication in England. The story did not appear on their website and no copies of the newspaper containing the story were circulated for sale in England. The point they made was a simple one; an injunction or other court order in a ‘foreign’ legal jurisdiction simply had no application in Scotland.
The paper was assisted by the fact that it was not an ‘English’ or even England-based organisation publishing banned material ‘abroad’ but was a Scottish paper publishing solely in Scotland. To some extent the increasingly globalised nature of the modern press means that most, but not all, news outlets in the UK will not be in that position.
As the first minister, Alex Salmond, was keen to point out to TV news crews, those seeking to restrain publication of private material in Scotland have an obvious remedy – make an application to the Court of Session in Edinburgh for an interim interdict. Perhaps, though, it is easy to understand why that might not be a very attractive option. An unfamiliar legal system, the need for a new separate legal action, uncertainty over the result, the risk of failure drawing even greater attention to the dispute – all these might militate against the launching of interdict proceedings in Scotland.
The situation is also complicated by the protection afforded to defenders in Scotland by the Scottish system of ‘caveats’. The rules of the Court of Session (and indeed the Sheriff Court) allow any party to lodge a caveat with the court for a relatively small fee. The caveat provides protection against the granting of interim orders on an ex partebasis, without the intended subject of the interim interdict first being given an opportunity to be heard by the court. In practice that means that a party who maintains a caveat with the Court of Session will be contacted by the court when an application for interim interdict is made. Depending on the urgency of the matter that hearing might take place in a matter of hours, at some point the following day or at a time agreed with the court and parties.
The existence of the protective system of caveats has been previously been cited as one of the reasons why allowing interim interdicts to be granted ‘against the world’ rather than against named individuals cannot operate in Scotland. However, that approach didn’t get much support from the court in Oliver & Sons Petitioners , in which the Inner House confirmed that interim interdict could be obtained against unnamed individuals where those individuals were occupying land unlawfully since, although unnamed, they could be ‘identified’ by other means including photographic and eyewitness evidence.
As if to underline the personal nature of interdict, it has been felt necessary to make specific provision for the taking out of interdicts against unknown persons in Scotland (and similar injunctions in England) for the purposes of dealing with threatened breaches of the Energy Act 2008.
In Oliver, the Inner House took a very detailed look at the background to the leading case on the personal nature of interdict (Pattison v Fitzgerald ). Their conclusions seem to underline, once again, the need for those who are to be subject to an interdict to be parties to the interdict proceedings.
Civil Jurisdiction and Judgments Act 1982
Irrespective of the legal complexities thrown up by consideration of the nature and competence of interdict in Scotland, the reality is that there are existing statutory provisions for this kind of situation. Section 27 of the Civil Jurisdiction and Judgments Act 1982 (as amended) (the 1982 Act) is designed to deal with the taking of protective measures in Scotland in the absence of substantive proceedings being raised here. The protective measures available specifically include interim interdict. Perhaps more surprisingly, interim interdict can even be granted by a Scottish court before proceedings have actually been commenced in the other jurisdiction, provided that the court is satisfied they are ‘to be’ commenced there.
There are few reported cases where reliance has been placed on s27 but, where it has been used, a Scottish court was prepared to grant interim interdict in terms that reflected the foreign court order – even where the terms of the order would be incompetent in Scotland. In G v Caledonian Newspapers Ltd  the terms of an English privacy injunction were simply repeated verbatim in the Scottish order even though it included an order against the world at large. Lord Marnoch suggested that while the court would always exercise its discretion, it will normally be enough that a prima facie case is made out ‘according to the jurisprudence of the foreign court’ and that ‘comity’ meant that the court should assist the petitioners despite the wide ranging terms of the injunction.
There must be some doubt though as to the correctness of the Caledonian Newspaper decision. The 1982 Act does nothing to alter the substantive Scots law on interdict. The law must therefore be taken as being as stated by the Inner House in both the Cavendish case and Oliver. There is certainly no indication in either case that interdicts against the world are anything other than incompetent under Scots law.
Equally, although there is no authority on the point, it is assumed that an application under the 1982 Act must still be directed against specific parties – at least in the first instance. In the Caledonian Newspaper case, for example, several individual newspapers were called as respondents to the petition. Inevitably, each of them would have had a caveat in place and would therefore have received warning of the application for interim interdict before it was granted.
What of super-interim interdicts?
Despite all the foregoing discussion there seems to be no reason in principle why super-interim interdicts cannot exist in Scotland. It has become harder over the past year or so to define precisely what is meant by the English term super-injunction. Perhaps, predictably, the popular press has chosen to use the term in a very loose rather than a legal sense. This is not the place for a detailed history of the use of such injunctions but it is probably fair to say that they first came to wider public notice in the action by Trafigura against the Guardian newspaper (see http://www.guardian.co.uk/world/2009/oct/13/how-trafigura-story-unfolded?INTCMP=SRCH). The injunction in that case not only prevented the Guardian reporting on their investigation but, critically, also prevented them reporting the very existence of the injunction and fact that they were subject to it. This is what made it ‘super’.
That definition of a super-injunction is the one adopted in the Report of the Committee on ‘Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice’, published in May 2011 (the Neuberger Report).
In contrast most, if not all, of the current crop of injunctions in England are not true super-injunctions at all. They have been labelled as such by the press simply because the court has agreed that the party seeking the injunction should be anonymous. This is what the Neuberger Report refers to as ‘anonymised’ injunctions. Given the nature of the privacy breaches alleged in such cases, the need for anonymity is hardly surprising. Revealing the name of the party would render the injunction pointless (even if full details were not already available for all to read online).
Granting parties to an action, anonymity is relatively commonplace. Recent examples can be found in Scotland without difficulty – often children are involved – and, if an interim or permanent interdict forms part of the subject matter of the action, then the anonymous element will be extended to protect the relevant party. To that extent anonymised interdicts appear to present no difficulty in Scotland.
The question of interim or permanent interdicts which, of themselves, ban the interdicted party from revealing the existence of the interdict is a much trickier one. For obvious reasons it is difficult to say with any certainty whether such interdicts have been granted in the past in Scotland but, on balance, it seems unlikely. Having said that, Scotland is a small jurisdiction with a relatively small legal profession and, however draconian the court order, it seems unlikely that news would not leak out in legal circles. Certainly any failed attempts to obtain an interdict of that kind would be picked up and commented on.
The only publicised example of an attempt to secure a true super interim interdict is a result of just such a failure. In October 2010 The Sunday Herald (again!) reported that it had successfully opposed an application by Strathclyde University for an interim interdict, which it claimed would have prevented the newspaper reporting on a dispute at the university but would also have prevented them reporting the existence of the interim interdict itself. Interim interdict was apparently refused with the newspaper indicating that the judge, Lord Pentland, had suggested that the super-injunction aspect of the interdict was an ‘unnecessary restriction on responsible journalism’. No written judgment was issued, which means that there is no way of knowing the nature of the arguments presented, nor the full nature of any comments made by the judge. It does tend to suggest, however, that, as those of us with experience of seeking interdict in the Court of Session might have guessed, the obtaining of super-interdicts whether temporary or permanent will not be straightforward, unless the circumstances are exceptional.
There remains the question of the effectiveness of super interdicts and injunctions. Even in England the House of Lords decision in The Sunday Times seems to confirm that knowledge of the existence of an injunction (and possibly an interdict) is sufficient to bind others. However, that does still depend on a party having knowledge of the injunction. The whole point of super-injunctions is to prevent the very existence of the injunction becoming known. In that kind of scenario how could a blogger be aware of its existence so as to be bound by its terms? For that reason, if no other, super-injunctions (subject to any possible legislative intervention) may have had their day.