Ministry of Defence v Global Media and Entertainment Limited & Ors

Continuation of a super-injunction requires a careful balance between the protection the order may provide and its interference with freedom of expression and public scrutiny. The court may maintain the order where there is a real possibility that disclosure would expose individuals to serious harm, even where the order prevents scrutiny of important governmental decisions. That conclusion must be kept under review. Where the evidence also suggests that continued secrecy may endanger a larger group, the court should not rely indefinitely on written evidence alone. It may require a corporate witness to give open evidence for questioning by affected media parties, with closed questioning by Special Advocates where appropriate. A super-injunction should not be discharged merely to facilitate debate about its existence if doing so risks undermining protection of the underlying information.

The Ministry of Defence obtained a contra mundum super-injunction after a data breach involving personal information concerning Afghan Relocations and Assistance Policy applicants. The order prevented disclosure of the breach and related information. Media organisations were subsequently joined as parties, and a closed material procedure was established under the Justice and Security Act 2013.

At the fifth return date, the court considered whether the injunction, and its super-injunction element, should continue. The MOD relied on the possibility that disclosure would enable the Taliban to identify and harm people awaiting relocation. The media parties relied on the importance of public and Parliamentary scrutiny, and on the possibility that secrecy was itself harming people excluded from relocation. The central issue was whether the balance of advantages and disadvantages favoured continuation pending further evidence.

1. Order continued. The super-injunction remained in force until further order. The court found a real possibility that continuation would protect existing ARAP-eligible people and a further cohort whose eligibility or relocation was under reconsideration.
2. The injunction seriously interfered with the media defendants’ freedom of expression and the public’s correlative right to be informed about decisions of major public importance. There was also a real possibility that public scrutiny might affect governmental decisions on relocation, compensation and resources.
3. The court nevertheless had to decide the application on the evidence before it. The MOD’s evidence did not substantiate a protective benefit from discharge for the much larger group who, under current policy, would not be offered relocation. It also did not establish that different relocation decisions could produce an immediate or medium-term protective benefit.
4. However, the possibility that continued secrecy might adversely affect that larger group was critically important. The injunction could otherwise continue indefinitely. The media parties’ knowledge of conditions in Afghanistan showed that open questioning could assist in testing the robustness of the MOD’s assessments and assumptions.
5. At the next return date, the MOD was therefore directed to tender a corporate witness for questioning in open by representatives of the media defendants and in closed by the Special Advocates. The further evidence was to address the possible acceleration of relocations and whether inability to notify affected people or compensate them increased their danger.
6. The super-injunction element was not discharged. Meaningful public debate about it would be difficult without revealing why the order had been made, and disclosure of that reasoning risked undermining protection of the underlying information.

not stated in the judgment.