Ministry of Defence v Global Media and Entertainment Limited & Ors

The continuation of an interim non-disclosure order requires a clear and cogent evidential basis. A super-injunction requires strict necessity, and continuation beyond a short period is truly exceptional.

The court must balance the risks protected by the injunction against risks caused by maintaining it, including risks arising in scenarios considered unlikely. Executive risk assessments receive due weight, but the balancing exercise remains for the court. Harm from suppressing public and Parliamentary scrutiny, and from depriving affected people of information needed for autonomous decisions, may be material. Where the balance no longer justifies secrecy, the injunction should be discharged.

The Ministry of Defence obtained a contra mundum super-injunction preventing disclosure of a Government data breach involving personal information concerning applicants for relocation from Afghanistan, and preventing disclosure of the injunction itself.

The injunction had been continued on several occasions while the Government developed protective measures and relocation policies. The media organisations were later joined as defendants, and Special Advocates were appointed following a declaration under the Justice and Security Act 2013.

After an evidential hearing involving open and closed evidence, the central issue was whether the risks protected by continuing the injunction outweighed the risks caused by continued secrecy.

1. The injunction was discharged. It was to cease 21 days after hand-down, allowing protective notifications to be sent and time for any appeal.
2. The fact of the data breach was information capable in principle of protection by injunction because disclosure created a real risk to life and national security: Attorney General v BBC [2022] EWHC 826, [2022] 4 WLR 74. That risk was not conclusive. The court also had to consider whether granting or continuing relief might endanger life, directly or indirectly, and balance the competing consequences.
3. Executive assessments were entitled to due weight, but the court had to conduct the balancing exercise itself. The court was not reviewing the Government’s decision on judicial review principles.
4. The assessment that the Taliban did not know of the dataset’s compromise involved significant uncertainty. If they already had the dataset, continued secrecy could increase risks by preventing affected persons from taking protective steps. Such harms had to be included in the calculus even if the relevant scenario was considered unlikely on balance.
5. The larger non-relocation cohort faced substantial adverse effects from continued secrecy, including inability to prepare for a foreseeable future threat, inability to benefit from public or Parliamentary pressure, and interference with autonomous decisions affecting their lives and families.
6. The scale of the Government’s policy decisions, the billions of pounds potentially involved, and the absence of public scrutiny made prolonged secrecy objectionable in principle. The Ministry had not shown that continuation remained justified.
7. Had the injunction been continued, the court would have discharged its super-element. The assessed risk that doing so might unravel protection was insufficient to justify completely suppressing public debate after more than eight months.

The judgment records earlier interim decisions in the same proceedings:

• High Court (King’s Bench Division): Robin Knowles J granted the super-injunction on 1 September 2023.
• High Court (King’s Bench Division): The injunction was continued, with modifications, on 2 November 2023, 1 December 2023, 18 December 2023 and 15 February 2024.
• High Court (King’s Bench Division): The present judgment discharged the injunction prospectively. The earlier decisions are referred to as Judgment no. 1, [2023] EWHC 2999 (KB), and Judgment no. 2, [2024] EWHC 312 (KB).