What a hyper-injunction looks like

Justice should be blind, not gagged

I never thought I would be writing these words about a British court, but here goes. In this country a court can make an injunction that not only prevents those involved in a case from talking about its details or repeating allegations that have been disproved, but also prevents them – on pain of imprisonment for contempt of court – from mentioning the mere existance of the injunction itself.

It should go without saying that secret justice is an affront to fundamental principles of justice that Western liberal democracies are supposed to adhere to. John Hemming MP has done an invaluable service in exposing, in a debate that you must watch or read, the extent of this cult of secrecy. For those who don’t have time to read the whole transcript, Anna Raccoon and Alex Massie have both written excellent blog posts on this subject.

One example that Mr Hemming revealed concerned a case in the Commercial and Admiralty Court, where it was alleged that a person had suffered illness as a result of toxins released into the drinking water tank in a passenger ship. I quote from Hansard, columns 148WH-151WH (my emphases in bold):

John Hemming: We should consider again the wider questions of court decisions in respect of contact with Members of Parliament and others. I have here a case from 2005-folio No. 773. It is an injunction that says that if someone disobeys this order, they may be found guilty of contempt of court and may be sent to prison or fined or their assets may be seized. I am not going to name the parties in that case because more research needs to be done into it. However, without me putting this into parliamentary proceedings, I cannot even write to the people involved. Obviously, an ordinary letter not connected with proceedings in Parliament is not covered by the Bill of Rights. Paragraph (1) of the document concerned states:

“Neither the Defendant nor any third party with notice of the Injunction may communicate with any third party regarding these proceedings in general and the potable water tanks or system referred to in the Injunction in particular.”

…Returning to paragraph (1)(a) of the document, it states:

“The third parties with whom the Defendant (and/or such third party) must not communicate in that regard include (but are not limited to):

(i) A or any other owner or operator of ships.

(ii) The United States Coastguard or any other coastguard or similar organisation;

(iii) B or any classification society;

(iv) Members of parliament, journalists and lawyers, with the exception of lawyers or legal advisors instructed for the purpose of assisting his defence of these proceedings.

(2) The Defendant (and/or such third party) must not communicate to third parties (without prejudice to the generality of the terms of the Injunction):

(a) The existence of these proceedings;

(b) The existence or terms of the Injunction;

(c) The fact that the potable water tanks of C and D were recoated;

(d) The fact that the potable water tanks of other vessels (such as the E and F) were also recoated.

(e) Anything to do with the potable water tanks of any of the above-named vessels, their coating or recoating which he has learned as a result of these proceedings, including without limitation the content of paragraphs 5 to 7 of the first affidavit of G.

(f) Any speculation that the illness of any individual (including without limitation the collapse of H) was, has been or will be brought out by the chemical composition or the chemicals present in the coating of the potable water tanks on the C.”

There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says

“with the exception of lawyers or legal advisors instructed for the purpose”.

I believe that the person concerned got a two-week suspended sentence for talking to a lawyer about whether he could have it on a no win, no fee basis. So there is a real question about whether he can get a fair trial on this basis. One of the things to which he is not supposed to refer is the fact that in the potable or drinking water tanks of these vessels, the paint was defective. In certain circumstances, the coating could break down and release small quantities of a toxic substance into the water contained in the tanks. What we have, therefore, is passenger vessels trundling around the world with potentially toxic substances being released into the tanks, although to be fair, the problem with the coating in the tanks is being fixed; but one of those who worked on the tanks collapsed as a result. We also know that the situation continued.

The reason why I have not named people is simple: I do not know the nature of the toxins or whether they are serious, and they might not be. However, I am greatly worried about transparency, and I might pass these details to a Committee of the House, if there is one that wishes to look at them. From a health and safety point of view, we want to think that the water we are drinking is safe and that it will not cause health problems; the difficulty in this case is that we do not know. What we do know is that corporations used the massive force of the law to gag an individual and truss him up so much that he could not really challenge the process.

Mr Bacon: What my hon. Friend has just said is really quite extraordinary. As I understand him, he is saying that a court in this country made an order with a whole load of provisions in it. What particularly attracted my attention, however, was that it prohibited someone from talking to a Member of Parliament and from referring to the existence of the proceedings. When one thinks of secret courts, one thinks of unsavoury regimes such as those in Burma, Cuba, Hungary in the 1950s or Stalin’s Russia, but one does not think of the United Kingdom. How can a judge feel it appropriate to make an order making it unlawful – supposedly – to refer to the existence of proceedings?

John Hemming: sowing the seed of legal reform?

John Hemming: The person in question could actually be jailed for telling his MP that he had been in court case No. 773. What is so sensitive about that? In practice, even family court proceedings are not that confidential. I think this case was in the Commercial and Admiralty court. My first question is not just how the hell this could happen – I apologise for the non-parliamentary language, Mr Bone. How does this happen? How many more of these cases are there? How many secret cases do we have in this country, with people being banned from even saying that the case exists?

End of quotation from Hansard.

This is a remarkable read. There are many disturbing issues raised here. One is that, as Mr Hemming points out, preventing people from talking to their Parliamentary representatives means that MPs cannot do their jobs properly, since one of their jobs is to obtain “the redress of grievances”. The other job is to legislate, and one wonders how MPs can legislate effectively when they are kept ignorant of the operation of the law in some cases.

Another deeply worrying implication is that, despite the text of the injunction containing an exception for “lawyers or legal advisors instructed for the purpose”, it still turned out to be a breach of the injunction to discuss with a lawyer whether they would take the case on a no-win, no-fee basis. I may not be a lawyer, but if I was I would certainly not take a case before I had asked my prospective client for details of it first. To do otherwise would be like buying a pig in a sack.

It is good to see that this incredibly important issue is beginning to get coverage in the mainstream media. They and I can only write about this because Mr Hemming has told Parliament about these hyper-injunctions, as everything said in Parliament is protected by Parliamentary privilege. That’s one ancient part of the British constitution I have become very keen to protect.

Further reading: Charon QC, Obiter J, UK Human Rights Blog.

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Photo credits. Lady Justice by _Pixelmaniac_ on Flickr republished under the CC BY-NC-ND 2.0 licence.
John Hemming by Oxfam International on Flickr republished under the CC BY-NC-ND 2.0 licence.

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6 Responses to What a hyper-injunction looks like

  1. Chris Jenkinson says:

    Most concerning. Particularly concerned about the person issued with the injunction is under threat of penalty if they are seeking legal representation – and if they are not, then this is very unclear from the injunction and a incredibly strong chilling effect above and beyond previous ones.


    • Niklas Smith says:

      It is indeed a powerful chilling effect. The way the injunction is written only seems to allow the person concerned to discuss the case with a lawyer after the lawyer has accepted his case! So it does not allow people to ask a lawyer to take up their case – they can’t even give the case’s number!

  2. peter oakes says:

    As an ex- marine engineer passenger liners. tankers, bulk cargo, general
    break bulk vessels, tug boats, pipeline construction lay barges.

    Every engineer has a civic – moral duty to all crew members and passengers
    that all potable water supplied on-board is fit-for -purpose & wholesome.

    The only Judge- God. Oga. Supreme Being . Skipper. Master. is totaly and
    soley reasponcible for everything, item, component, come what may on any
    ocean going vessel ( deep sea ) or even ( coasting )

    No jugde in any court anywhere can overhaul the Captains responcibilty &

    These so-called judges are acting beyond powers they do not posess ! End Off !

    To say you cannot inform the US Coastguard concerning contaminated Potable
    water tanks will get you imprisoned immediately in the USA. No vessle
    can violate US Coastguard regulations in US waters. These Judges should
    be named and they will be barred from the US or arrested if they enter the

    I was on a vessel that was banned from US Waters because we had in their
    terms ” dirty bilges” in the engine room ! Truth we were affecting sales on US registered vessels carrying cruising passengers.

    If you can,t fight fair. Fight dirty.

    just like Libya. it,s o.k. for Jordan, Syria, Tunisia, Bahrain, Abu Dhabi, Saudi
    Arabia, Algeria, Yemen, Tunisia, etc. etc. to have ” compliant” dictators & despots
    to enslave their citizens but us and the Ameriucans live in a Democracy whose
    civil servants ( civil masters ) never change ! despite the election results.

    come on grow-up see the truth you slaves of secrecy.

  3. Pingback: Are hyper-injunctions compatible with the Human Rights Act? | Niklas Smith

  4. Pingback: Opinion: Are hyper-injunctions compatible with the Human Rights Act?

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