Gagging orders on media

The number of injunctions in England and Wales could be significantly reduced after a landmark decision by the House of Lords last week.

The decision in Cream Holdings v Banerjee and the Liverpool Post and Echo Limited sees a final clarification of the terms of the Human Rights Act 1998 in relation to gagging orders.

Following the ruling by the Lords, a claimant now seeking to stop the publication of a story in a newspaper must prove that there is a more than 50% chance they would succeed in claiming damages in an ensuing trial.

In 2003 the Court of Appeal had ruled in the same case that as long as a claimant had a “likelihood” of winning at trial then an injunction should be allowed. This was interpreted as meaning less than a 50% chance of success and has led to an increase in claimants.

However, The Liverpool Echo and its lawyers Brabners Chaffe Street took the case – which resulted from an attempt by Cream to gag the Echo because it planned to reveal information about the entertainment company’s financial dealings – to the Lords.

The Lords’ interpretation of the law is expected to make claimants think twice before going to a judge to obtain an injunction. Brabners media partner Mark Manley, who led the case for the paper, said it will now be more difficult to obtain gagging orders. He said: “This is a pretty substantial ruling. A claimant will now need to have their case almost proven and need evidence [to gag a paper].” Media partner Maddie Mogford at City firm Reynolds Porter Chamberlain agreed.

She said: “This judgment is good news for the media as it means that, in order to restrict their right to freedom of expression – to restrain publication of private information – a claimant will have to show that he is more likely than not to succeed at trial.”

Mr Manley added: “It was also very courageous of the Echo and its team to take this case all the way to the Lords. Had they lost, it would have been extremely expensive.”

Richard Tromans: Law Society Gazette 21st October 2004