Interim And Super-injunctions

Question 1

What is an interim injunction?

Answer 1

• a court can grant an injunction before a full trial takes place
• made during litigation which is binding on the parties only up to the date of final judgement
• national commercial bank Jamaica v Olint corp

Question 2

Factors for grant of interim injunction

Answer 2

Set out in American cyanamid co v ethicon
- facts: D about to launch on the British market a surgical suture which the claimant alleged infringed his patient. The claimant sought an interlocutory injunction to restrain the product launch

4 factors considered: serious issue to be tried, applicant has a good prospect of succeeding at trial, damages are not an adequate remedy, balance of convenience favours the applicant

Question 3

What is a super-injunction

Answer 3

• an exception to the American cyanide principle
• for super-injunctions the courts look at the strength of the case
• restrains the publication of private, confidential info until the completion of trial

Restrains a person from: publishing info which concerns the applicant and is said to be confidential or private and publicist or informing others of the existence of the order and the proceedings

S12.3 HRA 1998 applies

Question 4

The human rights act and super-injunctions

Answer 4

HRA 1998 provides two conflicting rights impacted by super-injunctions-
- right to privacy- article 8 and right to freedom of expression- article 10

Campbell v MGN: none of these take precedent over the other- HOL

S12.3- no relief is to be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed- cream holdings and other

Question 5

The three stage test

Answer 5

S12.3 and 12.4

Stage 1- reasonable expectation of privacy - art 10
Stage 2- public interest- art 12.4
Stage 3- proportionality

Stage 1 and 2 must be established for a grant

Question 6

Stage 1

Answer 6

Reasonable expectation of privacy
- if not, art 8 is not engaged and there can be no grant
- objective test: lord hope- ‘whether a reasonable person of ordinary sensibilities, if placed in the same situation would find the disclosure offensive’
- not whether the applicant expects privacy but whether a reasonable person would
- some matters are deemed inherently private e.g sexual relations between consenting adults- Mosley v news GP newspapers and Ferdinand

Question 7

Stage 2

Answer 7

Public interest
- is it in the public interest for the info to be published?
PJS v news group newspapers- not public knowledge to know about sexual activities of celebs
Campbell v MGM- not public interest to know about a persons drug habit

Publication of corruption by MP’s is public interest- Hutchison v news group newspapers

Question 8

Stage 3

Answer 8

Proportionality
- is the publication of the info proportional in the circumstances
- one factor which renders it disproportionate= potential harmful effect on children- CDE v MGN
- court may only permit publication of an ‘anonymised’ story which does not identify the specifics of the info or protest the identity of the parties