Contra mundum injunction granted by the High Court

In Persons formerly known as Winch and others (application for contra mundum injunction) [2021] EWHC 1328, the High Court granted a final contra mundum (against the world) injunction which prohibits the publication of the new identities of a police informant and his relatives. The risk to the lives of the claimants was found to be so severe that the Venables jurisdiction was invoked. This effectively grants the claimants lifetime anonymity and derogates from the ordinary rule that the media is entitled to report everything that takes place in open court.

Facts

Mr Winch (the first claimant) was previously involved in organised crime groups (OCGs). He subsequently became a police informant, known as a “supergrass”, and gave evidence at criminal trials which resulted in the conviction of 29 individuals involved with OCGs. The second and third claimants are relatives of Mr Winch, and all three individuals are living under new identities.

During the trials at which the claimant gave evidence, the media were prohibited from reporting on his involvement or anything capable of identifying him, his relatives or his whereabouts, pursuant to reporting restriction orders (RROs) under section 4(2) of the Contempt of Court Act 1981. This was granted on the basis that the claimants’ lives were under threat by OCGs.

In advance of the expiry date of the RROs, the claimants issued a Part 8 claim and applied for a permanent contra mundum (against the world) injunction prohibiting the publication of material that could identify them, in order to protect their Article 2, 3 and 8 rights under the European Convention of Human Rights. The media were notified of the application, and it was not contested.

Decision

Ever since the decision in Venables v News Group Newspapers Ltd [2001] Fam 430, the courts have considered that the obligation under the Human Rights Act 1998 to apply the European Convention on Human Rights enables them to grant injunctions in perpetuity and contra mundum to protect the identities of individuals. The contra mundum effect of the injunction means that it applies to any person, not just those named as respondents to the injunction (which is usually the case with injunctions), and so any person could potentially face contempt of court proceedings if they were to be in breach of it.

The courts have repeatedly said there is a very narrow band of exceptional circumstances which justify such injunctions. In this case, the contra mundum injunction was granted on the basis that there was significant evidence that the claimants were at serious risk of harm by the OCGs, and that the injunction would significantly mitigate this risk.

Comment

This is potentially a highly exorbitant jurisdiction, with the courts granting themselves extraordinary powers in terms of to whom these injunctions apply (everyone) and the extent of time for which they apply (for the lifetime of the claimants). The court noted that such injunctions had been issued only “a handful of times” in the past 20 years. That is true, but they appear to have become more frequent in recent years, with a significant proportion of that handful taking place since 2018.

The injunction was particularly notable since it restricted the republication of what was stated in open court. Warby LJ, giving the leading judgment, acknowledged that the injunction would, to a degree, derogate from the ordinary rule that the media is entitled to report everything that takes place in . court. He emphasised the importance of this rule, and that any exceptions to it required “clear and cogent justification”. However, where there are “grave risks” to the claimants’ human rights, in the form of death or very serious violence by OCGs, the threat to the claimants’ rights does not need to be balanced against the interference with the media’s Article 10 rights of freedom of expression. In any event, Warby LJ emphasised that the interference with the media’s rights was limited on the basis they were free to report on the first claimant’s involvement in the trials and his previous activity with OCGs and to use his original name in their reporting.

Nicklin J, agreeing, also emphasised that, as had happened in this case, an applicant for a contra mundum injunction should notify the media in circumstances where the injunction would affect their freedom of expression, in order to allow them the opportunity to make representations. However, Nicklin J also noted that for such injunctions, there was no need to have a formal defendant or respondent. Often in the past such injunctions have been sought against a named newspaper and the contra mundum effect added. That was no longer necessary. So that leaves us with a case with claimants but no defendants or other parties, something of an oddity in English law.

For further information, please email the authors or your usual CMS contact.