Super Injunctions: Ntuli v Donald

A super injunction is one in which an anonymized applicant is granted an injunction restraining an anonymized respondent from doing specified but unpublishable things and further restraining the respondent and others from publishing the fact that the injunction had been sought and obtained.

In Ntuli v Donald [2010] EWCA Civ 1276 (16 Nov 2010) the appellant Adakini Ntuli sought to overturn an order by Mr. Justice Eady restraining her from publishing, using or disclosing scheduled categories of confidential information, the existence of the proceedings or the identity of the parties. The information itself concerned details of the Ntuli's personal relationship with Howard Donald of "Take That". After their relationship came to an end, Ntuli sent Donald the following text:

"Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?"

She then engaged the publicist Max Clifford whereupon Donald applied to Mr. Justice Eady without notice for a super injunction in the above terms. On the return date, his lordship modified the order with the following proviso:

"PROVIDED THAT nothing in this paragraph of this Order shall prevent the Defendant from publishing, communicating or disclosing the following (a) any material that before service of this Order was already in, or that thereafter comes into, the public domain …; or(b) the fact that the Claimant had a relationship with the Defendant; AND PROVIDED FURTHER THAT nothing in this paragraph of this Order shall prevent the Defendant from discussing any of the material which she has already discussed or wishes to discuss with any family member or close friend, nor from disclosing to any such family member or close friend the existence of these proceedings or the Claimant's interest in them."

He also ordered her to pay two thirds of Donald's costs.

Ntuli appealed against the injunction on the ground that it should never have been made at all, that it was too vague, that she should not have to pay costs and that the order should not have been anomymized.

Delivering a judgment with which Lord Justice Sedley and Lord Neuberger, Master of the Rolls agreed, Lord Justice Kay characterized the dispute as a clash of human rights in which Donald relied on his right to privacy under art. 8 of the European Convention on Human Rights and Ntuli on her right to freedom of expression under art. 10.

Relying on Lord Steyn's speech in Re:S (a child)(Identification: Restrictions on Publication) 17 BHRC 646, [2004] 4 All ER 683, [2005] Crim LR 310, [2004] UKHL 47, [2004] 3 FCR 407, [2005] HRLR 5, [2005] 1 FLR 591, [2004] 3 WLR 1129, [2005] 1 AC 593, [2005] EMLR 11, [2005] UKHRR 129, [2005] EMLR 2 that

(1) neither art 8 or article 10 has as such precedence over the other,

(2) an intense focus of those individual rights in the context of the case is required where those rights conflict;

(3) the justifications for interfering with or restricting those rights must be taken into account; and

(4) a proportionality test should be applied to each;

the Court refused to discharge or limit the scope of the injunction or disturb the order for costs. However, the Lords Justices did not consider than the order had gone too far. And they discharged the super injunction and anonymity provisions on the ground that the interests of the parties did not override the public interest in the openness of the proceedings.

This judgment provides a thorough analysis of the principles to applied in cases of this sort but the Court of Appeal made clear that each case has to be decided on its own facts.