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The Return of the Super-Injunction?

The Return of the Super-Injunction?

A recent judgment handed down by Mrs Justice Elisabeth Laing recently in the case of A1, A2 and X has begged the question – are super-injunctions going to be making a return?

Most people know about the notoriety of super-injunctions, which largely came to public prominence in 2011 following the Imogen Thomas and Ryan Giggs matter.

Top Secret - Super-injuction prevents disclosure of informationBroadly put a super-injunction is an escalated type of injunction which prevents not only disclosure of the subject matter upon which the injunction is concerned but also any disclosure of the existence of the super-injunction itself.

Following the Imogen Thomas/ Ryan Giggs matter in 2011, which was quickly unravelled following a Twitter storm of attention, super-injunctions became essentially old news and from a legal perspective extremely difficult to obtain, largely for the simple reason that they were tough to police and the increase in usage of social media in to general everyday life meant that there was a more than real chance than the terms of a super-injunction would be revealed, thereby making them largely moot. However, Mrs Justice Elisabeth Laing’s recent decision could see a change to this, and return to the days of super-injunctions.

The case at hand concerned an application, by a high profile prominent sportsman (Mr Sportsman), who appeared in adverts and held positions of responsibility in sport, to obtain a High Court injunction banning him and his lover being named. The Defendant sought to argue that Mr Sportsman should not be allowed to avail himself of an injunction because he had ‘broken rules’ by meeting her in hotels for sex when he should have been readying himself for events, thereby deceiving his girlfriend and team manager – therefore his position as a prominent sportsman and role model is undermined by such behaviour. It was common ground between the parties that the relationship was some time ago and lasted only a few months.

Mrs Justice Elisabeth Laing appreciated that some material in respect of the parties had previously been published, but the further proposed substantive story would be much more detailed and would inevitably cause embarrassment to Mr Sportsman and his wife. Although Mr Sportsman did not deny any of the alleged deceits, Mrs Justice Elisabeth Laing still found that the affair was one of a private existence and that Mr Sportsman is "a role model for sportsmen and aspiring sportsmen. His position does not turn him into an example in every sphere of his existence." In her judgement she found that a discreetly conducted affair, before Mr Sportsman’s marriage is not inconsistent with his public personae regardless of whether it involved a breach of team rules. Even though he was a prominent sportsman, she considered that this did not mean that implicitly his views on private morality should be published by means of his public personae – hence the injunction to protect identity was granted accordingly.

Although different from super-injunctions, the type of injunction handed down by Mrs Justice Elisabeth Laing shows that the Court are not shy in exercising their discretionary powers to block the naming of high profile persons with positions of responsibility. The next step of course would be that the Court precludes the disclosure of the fact that the injunction was obtained in the first instance and this would put us firmly back in super-injunction territory.

John Spyrou

Director

Pinder Reaux Solicitors

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