Attorney-General v Guardian Newspapers Ltd

An interlocutory injunction may be continued where the claimant retains an arguable claim and its discharge would destroy the only effective remedy before trial, while continuation would merely delay the defendants’ rights if they ultimately succeed. Freedom of expression must be balanced against the public interest in national security and preserving the confidentiality of security information. Foreign publication and limited domestic availability do not necessarily make an injunction futile where mass circulation within the jurisdiction may cause further harm. The merits of a novel question about whether confidentiality survives widespread publication should ordinarily be determined at trial on proper evidence, rather than conclusively on an urgent interlocutory appeal.

A former senior Security Service officer sought to publish memoirs containing information obtained during his employment. The Attorney General obtained interlocutory injunctions restraining English newspapers from publishing information derived from him.

After the book was published in the United States and copies became available in the United Kingdom, the Vice-Chancellor discharged the injunctions because changed circumstances had substantially reduced their utility. The Court of Appeal reversed that decision but introduced a proviso permitting summaries in very general terms.

The newspapers appealed and the Attorney General cross-appealed. The central questions were whether an arguable claim for permanent relief survived foreign publication, whether continued restraint could prevent further harm, and where the balance of injustice lay pending trial.

By a majority of three to two, the newspapers’ appeals were dismissed and the Attorney General’s cross-appeal was allowed. The interlocutory injunctions were continued until trial without the Court of Appeal’s permission for summaries in very general terms. The proviso permitting publication of material disclosed in the New South Wales proceedings was also removed.

1. Per Lord Brandon, Lord Templeman and Lord Ackner, the Attorney General retained an arguable claim for permanent injunctions. Publication abroad had greatly weakened the claim but had not conclusively extinguished it. The difficult and novel question whether a recipient’s duty of confidence survived widespread publication should be determined after a proper trial rather than on an urgent interlocutory appeal.

2. Per Lord Brandon, discharging the injunctions would permit immediate mass publication and irrevocably destroy the Attorney General’s only effective remedy. Continuing them would cause only temporary delay if the newspapers ultimately established a right to publish. The Vice-Chancellor had not given sufficient weight to this asymmetry of possible injustice.

3. Per Lord Templeman and Lord Ackner, limited availability of the book through foreign publication was materially different from mass dissemination by the British press. Continued restraint could still protect Security Service personnel and morale, preserve confidence in the Service, discourage comparable breaches, and uphold the effectiveness of court orders. An account of profits was not an adequate substitute for preventative relief.

4. Per Lord Brandon and Lord Templeman, freedom of expression was fundamental but not absolute. National security and prevention of disclosure of confidential information were legitimate countervailing public interests recognised by article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention had not been incorporated into domestic law, but its framework supported the need to balance the competing public interests.

5. Lord Bridge and Lord Oliver dissented. They considered that the information’s worldwide availability meant confidentiality had effectively been lost and that continued restraint imposed a grave and futile restriction on public discussion. Lord Oliver also considered that the Vice-Chancellor had exercised his discretion properly and that no arguable case for permanent relief remained against newspapers uninvolved in the original breach.

1. House of Lords: By a majority of three to two, dismissed the newspapers’ appeals, allowed the Attorney General’s cross-appeal, continued the interlocutory injunctions until trial and removed the proviso concerning reports of the Australian proceedings: [1987] 1 WLR 1248.
2. Court of Appeal: On 24 July 1987 reversed the Vice-Chancellor’s discharge of the injunctions, but substituted injunctions permitting publication of a summary in very general terms.
3. High Court: On 22 July 1987 the Vice-Chancellor discharged the injunctions because publication abroad constituted a material change of circumstances and continuation was considered futile.
4. High Court and Court of Appeal: In July 1986 Millett J granted modified interlocutory injunctions, which the Court of Appeal affirmed with limited alterations.