Comparison of Scottish and English Law of Interdicts, Injunctions and Super Injunctions

The main aim of this report is to research if Super Injunctions should be legally enforced in Scotland. Although, the first objective is comparing the Scottish and English Law of Interdicts, Injunctions and Super Injunctions. What are the different types and what do they do? The second objective is about who is allowed to take them out – do you have to be in the public eye or wealthy. The third objective is how the Super Injunctions are passed through the court, what are the laws on them, and how much do they cost. The fourth objective is all about why do people take these court orders out. The last part of the report will be a conclusion, which will round up the whole report.

English and Scottish Law On Different Types Of Interdicts

Under Scottish Law, an Interdict is a civil court order, that tells someone to either not do something, or to stay away from you. This can also be your house, place of work, or children, etc. In Scotland, if the person breaches the Interdict, they might be arrested, if the Interdict gives them powers to do so. In Scotland, Injunctions and Super Injunctions do not work, as you will see later on in the report.

Most people in Scotland, take out these orders, as they could be experiencing domestic violence from their partner, or ex-partner. It can also be obtained against family members or someone who is stalking or harassing you.

With some Interdicts, depending on the situation, there can be power of arrest attached to the order. If the person, who the Interdict is against, breaches the court order, then the police can arrest them without a warrant, and could end up in court, or even prison.[1]

The exact equivalent to the Interdict, under English Law, is an Injunction. An Injunction is also a court order, which orders a person to do a particular thing, or to stop an act. If they breach an Injunction, then they can also be imprisoned.

The most powerful is called a Super-Injunction. This type of Injunction stops any publication of information that is in issue and it also prevents the reporting of the fact that the Injunction even exists.[2]

As seen back in the year 2011, a Super Injunction that had been granted in England, was not legally binding in Scotland, as they are two different legal jurisdiction, therefore the Super Injunction was not enforceable in Scotland. The question should be why would people pay a lot of money, for it to then be exposed in another part of the United Kingdom.

If any of the court orders mentioned in the report, were to be granted in Scotland, it would not be legally binding with England, Wales or any other country in the world.

There have also been cases about raising Interdicts, about defamation (which is either in verbal form or written form), which are very unusual in Scotland. A case that illustrates this is RAH v MH, which was held in the Court of Session. MH had distributed handbills, which had expressed RAH as a liar, which was false and malicious information. RAH then raised an Interdict to prevent MH, or anyone on his behalf defaming him. He was also awarded £15,000, and had the Interdict granted.[3]

In England, the case Greene v Associated Newspapers Ltd, illustrates that, the claimant, Martha Greene had raised an Injunction, to prevent publishing emails, as part of a business relationship, showing links with Peter Foster, who was a convicted criminal, which she claimed they were false. The claimant could not satisfy the Bonnard v Perryman test, which meant it, got rejected, although she appealed it.[4]

In May 2011, it had been revealed that there had been 80 of the Super Injunctions obtained, from the British courts, in the last six years.

Are You Allowed To Take Them Out If You Are Not Wealthy And In The Public Eye

In Scottish Law, Interdicts can be taken out by people who have been assaulted, domestically abused, stalked, being verbally abused or threatened, under the Criminal Justice (Scotland) Act 2010, harassed or having unwanted contacts. People do not have to be wealthy to take out an Interdict; it is more to protect the person.

Employers can also take out Interdicts to protect themselves against an employee/former employee, where there is an interest to protect, which can be trade secrets, sale of a business or training, etc.[5]

Super Injunctions in Scotland, are usually to protect the privacy of rich and famous people.

In 2011, The Sunday Herald, a Scottish newspaper, had released a picture of a footballer, Ryan Giggs, who had the English order. Although, considering Scotland is a separate legal jurisdiction within the UK compared to England. The Super Injunction was granted in England, so it was not legally binding in Scotland.[6]

In Inverness, Scotland, Lady Scott, in the Court of Session, heard that a company, Capital Document Solutions Limited (CDS), had raised legal proceedings, against their ex employee. An executive, Michael Rae, had launched a company, called Highland Copiers Limited. Michel was in possession of a confidential document, describing business activities with customers, which is hypersensitive. The petitioners, CDS, hunted for the Interdict, as Michael was using the document. Basically, Michael had breached his employment contract with CDS, as he breached; confidence and provisions in the Data Protection Act 1998.[7]

In English Law, a few public figures have been granted Super Injunctions, to protect their private lives being damaged about their affairs, and giving them anonymity.

The public figures have been believed to be footballers, actors/actresses, television personalities, banking managers and chefs.

Some examples are as follows: a BBC presenter, Andrew Marr has used a Super Injunction, to stop details about his marital affair being made public. A Tory MP for Hendon, Matthew Offord, had claimed a MP, who is unnamed, was accused of seeking a Super Injunction, to prevent discussion of their activities. Also, a former chief executive of the Royal Bank of Scotland, Sir Fred Goodwin, had taken out a Super Injunction, to prevent any information about him, being made public.

In 2003, Liverpool footballers, Steve McManaman and Robbie Fowler, had their Injunctions stopped.

In 2010, John Terry, a former England football captain, had his Injunction thrown out by a judge, four days after applying for it. Also in 2010, Jeremy Clarkson, a well-known television presenter, had obtained an Injunction, to stop his ex-wife, Alex Hall.

So, yes, Super Injunctions are definitely for the wealthier people, as they do not want their name and personal life dragged through the mud, which will be made public. By being wealthy, they can use their wealth to do things or organise things, which other people may not be able to do, as they aren’t ‘wealthy’ enough.

Apart from wealthy people, there are non-famous people who have been granted Interdicts. A former detective inspector Paul Swinburne’s case could illustrate this, as his ex wife, who he assaulted and bullied, named Anne, had to get an Interdict, to prevent him from coming within 100 metres of her.[8]

Laws On Super Injunctions

David Cameron has made concerns about the use of these orders. He has warned judges in the past, that it is for the Parliament to decide ‘the balance between privacy and press freedom’. He also said ‘he was uneasy that the judiciary is circumventing the democratic process and using human rights legislation to introduce a privacy law by the back door’.[9]

There has been a bill of rights that is being contemplated thoroughly by a government commission that would restrict the rich and famous from using Super Injunctions to hide their marital affairs.

In 2011, it was reported that the Judicial Committee on Super Injunctions, that the system had been misused, and that Super Injunctions and Injunctions are not always irrelevant. Following thus, judges have been far more vigilant about granting these gagging orders.

If details about people who have Injunctions and Super Injunctions become published abroad or even online, the English courts cannot do much, unless the foreign publications have United Kingdom assets.

In Scotland, an applicant or a solicitor on behalf of the applicant passes Interdicts through the courts. A Sheriff Court or the Court of Session can issue these. The same applies to an Injunction, in English Law. An Interdict will only succeed the granting, if the courts are appeased that the wrong has been committed, or that it could be committed. It will not be granted if the court thinks the wrong will not be repeated.[10]

In England, it will be the same to get a Super Injunction, the judge will grant the order. The European Convention on Human Rights, in 2000, became embedded in the law in Britain, by creating a right to privacy, which has to be enforced by the courts. The legislation created a competing a right to privacy or the freedom of speech/expression. The judges had to work out the balance between the two; Parliament had left them to it.

Obviously, we know that the judges do not change the law, but they do have to propose to make it simpler for the public and media to know what is going on.

For example, the BBC will break the Super Injunction and their reporters will be in contempt of court if they do tell you, who has these orders.

In addition to the Interdict, a ‘Power of Arrest’ can be attached to it, which means if the person that the Interdict is against, breaches the terms of the order, they can be arrested, and may be taken to court, as it is a criminal offence, and could face up to five years in prisons and/or an unlimited fine. For example, if there Interdict preventing an ex spouse coming within the vicinity of the victim’s workplace or home, then the police can arrest them, on the spot.

Why Do People Take Out Super Injunctions

As stated in the report earlier, in Scotland and England, the Interdicts and Injunctions are taken out, mainly to protect people from earlier goings on in their life, from a specific person or a specific group of people, or maybe future incidents, that could happen, if the court agrees with the situations.

We now know from reading the report, which Super Injunctions are taken out to hide, affluent people’s affairs, private life and information that they would not want anyone knowing.

Although, the high profiled people do need to think if they are going to invest a large sum of money in obtaining a Super Injunction, as there is a big likelihood of their story ending up in foreign news or on any social medias.

For the cases you have just read under objective 2, Ryan Giggs took out the gagging order, as he wanted anonymity over his affair with Imogen Thomas.[11]  

Andrew Marr had taken out a Super Injunction, to protect his family, over an affair with one of his colleagues.[12]

The Tory MP, Matthew Offord had also taken one of the super court order out, to prohibit the deliberation of their activities.[13]

The former chief executive for Royal Bank of Scotland, Sir Fred Goodwin, had the gagging order taken out, as he had an affair with a colleague, and he wanted to hide it.[14] Although, the High Court lifted the Injunction, in March 2011, as his QC told the court he did not wish to sway the court to carry on with the anonymity.[15]

Also, the ‘non-famous’ people to get Interdicts granted too. Like the report has stated, earlier on. Anne, the ex wife to Paul Swinburne, had been granted a court order because she had been assaulted by Paul, and she didn’t want it happening again. So, the court order had stated that he should not come within 100 meters of her. This was to protect her.

In 2003, Steve McManaman and Robbie Fowler, who had spent £50,000 on trying to obtain Injunctions, failed to obtain them. Steve and Robbie had a threesome, with a 29 year old woman, who they met on a night out. Although, after this ordeal, they both then got granted an Injunction each, as Steve cheated on his wife, with Imogen Thomas, and Robbie was part of a group sex session, with three Swedish women in Las Vegas, which was recorded on a mobile phone.

Footballer, John Terry failed to obtain an Injunction, which was to stop claims going public, that he had slept with Vanessa Perroncel, whilst he was with his wife. She had to get an abortion, as the result of the affair. A judge had stated, that John Terry, was more worried about his sponsorships, rather than his private life and his family life.[16]

Jeremy Clarkson, had obtained an Injunction against his ex-wife, Alex Hall, to stop her talking about their affair they had after he married Franice. Later on, he had lifted the Injunction, after details had been leaked about his private life. He also claimed the gagging order as ‘pointless’.[17]

In England and Wales, there were five Injunction proceedings, and a further one continuing proceeding and two final proceedings, recorded over the first half of 2017.

The High Court, in the months, January to June 2017, in England and Wales, had granted two of the new Interim Injunctions, but had rejected three of the five of them.

The continuing Interim Injunction that took place in the first half of 2017 was granted. Also, there were two, in the second half of the year, 2016, which were granted.

The two final proceedings, in the first half of 2017, were both granted, and the final proceeding that happened in the second half of 2016, was also granted.[18]

Under Family Law in Scotland, there has been 2,673 Interdicts granted, from the year 2008, to the year 2016, and there has been 1,126 Interdicts refused, by the Civil Courts. Under the Court of Session, there have been zero cases refused, while three have been granted, during this period.[19]

Conclusion

The conclusion of this investigation is that in Scottish Law, the ‘victim’ will have to give a reason to the courts for wanting to take out an Interdict (called Injunction in English Law terms). A Super Injunction in Scotland is very difficult to get. These are very rare in Scotland, and extremely rare to find a case about these specific orders in Scotland. Whilst in England, it is very common, especially for wealthy people to have these orders taken out, as it protects their private life, and even affairs from being exposed. It basically wraps them up in cotton wool, and hides them from the news and public.

There are some people that would like to know when Scotland will be introducing Super Injunctions, or when can they will be legally binding with England, if they were taken out in England. Again, a lot of people will be asking; why do people pay a sum of money, to hide their affairs or information that they would not want the public to know, to come out, especially if foreign newspapers or news reporters won’t be in contempt of court, like they would be in Scotland.

Also, it shouldn’t just be privileged people, who can take out the Super-Injunctions. It should be available to everyone and anyone. Maybe it should be cheaper in getting one, as the average price of one, at this day in age, is roughly £60,000.

The last conclusion to this report, is that, yes, Super Injunctions should be legally binding in Scotland, as Scotland doesn’t legally bind with any other Jurisdiction in the United Kingdom, or any other country in the world.

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Footnotes

[1] Womensaid.scot. (2018). Cite a Website – Cite This For Me. [online] Available at: http://womensaid.scot/wp-content/uploads/2017/07/ExclusionOrderReport.pdf [Accessed 10 Nov 2017].

[2] BBC News. (2018). Q&A: Super-injunctions. [online] Available at: http://www.bbc.co.uk/news/uk-13473070 [Accessed 10 Nov 2017].

[3] Inforrm’s Blog. (2018). Case Law, Scotland: RAH v MH, an anonymous defamation judgment – Kerry Trewern. [online] Available at: Case Law, Scotland: RAH v MH, an anonymous defamation judgment – Kerry Trewern [Accessed 15 Jan 2018].

[4] swarb.co.uk. (2018). Greene v Associated Newspapers Ltd: CA 5 Nov 2004 – swarb.co.uk. [online] Available at: http://swarb.co.uk/greene-v-associated-newspapers-ltd-ca-5-nov-2004/ [Accessed 15 Jan 2018].

[5] Out-law.com. (2018). Interdicts in Scotland. [online] Available at: https://www.out-law.com/en/topics/dispute-resolution-and-litigation/interdicts-in-scotland/ [Accessed 11 Jan 2018].

[6] Beckford, M. (2018). Ryan Giggs named in court for first time over injunction. [online] Telegraph.co.uk. Available at: http://www.telegraph.co.uk/news/newstopics/lawreports/9096152/Ryan-Giggs-named-in-court-for-first-time-over-injunction.html [Accessed 4 Feb 2018].

[7] News, C. and information, C. (2018). Company awarded all expenses in petition for interdict against ex-employee and recovery of confidential information – Scottish Legal News. [online] Scottish Legal News. Available at: http://www.scottishlegal.com/2016/11/10/company-awarded-all-expenses-in-petition-for-interdict-against-ex-employee-and-recovery-of-confidential-information/ [Accessed 27 Jan 2018].

[8] Picken, A. (2018). Domestic assault victim calls for law change after ‘reliving the nightmare all over again’ – Sunday Post. [online] Sunday Post. Available at:
https://www.sundaypost.com/fp/domestic-assault-victim-calls-for-law-change-after-reliving-the-nightmare-all-over-again
[Accessed 4 Feb 2018].

[9] Telegraph.co.uk. (2018). David Cameron ‘uneasy’ about creeping use of injunctions to gag press. [online] Available at: http://www.telegraph.co.uk/news/politics/david-cameron/8466506/David-Cameron-uneasy-about-creeping-use-of-injunctions-to-gag-press.html [Accessed 1 Feb. 2018].

[10] Wardrop, M. (2018). Gagging orders: the rise of super-injunctions to protect the rich and famous. [online] Telegraph.co.uk. Available at: http://www.telegraph.co.uk/news/uknews/law-and-order/8501696/Gagging-orders-the-rise-of-super-injunctions-to-protect-the-rich-and-famous.html [Accessed 4 Feb 2018].

[11] Telegraph.co.uk. (2018). Ryan Giggs: timeline of injunction debate. [online] Available at: http://www.telegraph.co.uk/news/uknews/law-and-order/9095887/Ryan-Giggs-timeline-of-injunction-debate.html [Accessed 10 Nov 2017].

[12] BBC News. (2018). BBC presenter reveals injunction. [online] Available at: http://www.bbc.co.uk/news/uk-13190424 [Accessed 20 Jan 2018].

[13] mirror. (2018). MP takes out super injunction, another MP claims. [online] Available at: https://www.mirror.co.uk/news/uk-news/mp-takes-out-super-injunction-126848 [Accessed 20 Jan 2018].

[14] Swinford, S. (2018). Sir Fred Goodwin obtained injunction ‘to hide alleged affair with senior colleague’. [online] Telegraph.co.uk. Available at: http://www.telegraph.co.uk/finance/8523323/Sir-Fred-Goodwin-obtained-injunction-to-hide-alleged-affair-with-senior-colleague.html [Accessed 20 Jan 2018].

[15] Cathy Gordon and Brian Farmer, P. (2018). Sir Fred Goodwin super-injunction lifted. [online] The Independent. Available at: http://www.independent.co.uk/news/uk/politics/sir-fred-goodwin-super-injunction-lifted-2286385.html [Accessed 20 Jan 2018].

[16] profile, V. (2018). Another day, another gagging order; ‘Family man’ soccer star wins injunction to hide his affair with Big Brother girl.(News). [online] Capjohnsmith.blogspot.co.uk. Available at: http://capjohnsmith.blogspot.co.uk/2012/02/another-day-another-gagging-order.html [Accessed 4 Feb 2018].

[17] Halliday, J. (2018). Jeremy Clarkson lifts ‘pointless’ injunction against ex-wife. [online] the Guardian. Available at: https://www.theguardian.com/media/2011/oct/27/jeremy-clarkson-lifts-injunction [Accessed 4 Feb 2018].

[18] Gov.uk. (2018). Scottish Government, Civil Justice Statistics Quarterly, England and Wales, July to September 2017. [online] Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/642636/civil-justice-statistics-quarterly-apr-jun-2017.pdf [Accessed 4 Feb. 2018].

[19] Beta.gov.scot. (2018). Civil justice statistics in Scotland 2015-2016 – gov.scot. [online] Available at: https://beta.gov.scot/publications/civil-justice-statistics-scotland-2015-16/ [Accessed 4 Feb 2018].