Published: 18 January 2018
Area of Law: Injunctions & Search Orders
The strange case of the super injunction
FE Week has reported on a strange story regarding a so-called “super injunction” that Learndirect obtained against Ofsted to prevent the publication of a damning report, during the determination of Learndirect’s judicial review claim.
According to Ofsted’s Amanda Spielman, the injunction was made “without any reference” to Ofsted and its terms prevented Ofsted from discussing the report with the ESFA. Learndirect’s Chief Executive, Andy Palmer, told the Public Accounts Committee that he was unaware the injunction would stop Ofsted from discussing the report with other governmental departments.
Several things strike me as strange about this case. Firstly, “super injunctions” (which is term coined by the media, rather than a legal term) are granted in only the most exceptional circumstances and are generally used to prevent the media from publishing the fact that the injunction even exists. Given the reluctance of the Court’s to grant such onerous terms, it is surprising that Learndirect was able to persuade it to do so in this case.
Secondly, it is rare for an order to be made against a party without that party first being given a chance to be heard. This generally only happens if there is particular urgency, or if the party’s prior knowledge would defeat the purpose of the injunction all together. Even in those cases, an interim injunction is only granted until a return hearing can be arranged, at which the injuncted party has an opportunity to respond to any order that has been made. Having then heard from both sides, the Court can decide whether to uphold, vary or discharge the injunction. Ms Spielman has indicated that the injunction was made “without reference” to Ofsted, but this should not necessarily have meant it was not given a chance to reply before the hearing in August 2017.
Finally, there seems to be some confusion as to whether the terms of the injunction were such that Ofsted was prevented from discussing its report with ESFA. Any order for injunctive relief is required to be narrowly drawn to have minimal interference with a respondent’s rights. The terms ought to have been extremely clear as to what Ofsted was and was not able to do and the order itself would have been served on both parties. It would therefore be unusual for either party to be in any doubt as to the restrictions that had been ordered by the Court.
All in all, the circumstances around this “super injunction” are rather strange and the case raises some interesting questions about how it was obtained, what terms were ordered and how they were implemented, which is extremely unfortunate given the genuine public interest in the underlying issues surrounding the Learndirect case.