The Ministry of Defence used an unprecedented superinjunction to cover up a data breach that put an estimated 100,000 Afghans at risk of reprisals from the Taliban.
The superinjunction was granted contra mundum, meaning âagainst the worldâ, by the courts.
Hereâs what you need to know about the legal order:
Read more about the governmentâs extraordinary breach and how it was kept secret here:
What is a superinjunction?
An injunction is a legal order which prevents a person or publication reporting certain information, which is said to be confidential or private.
A superinjunction adds an extra layer to this by banning the reporting of the existence of the order itself. Under a superinjunction, a person cannot publicise or inform others about the existence of the order, or the underlying legal proceedings.
Superinjunctions need to be kept under review by the court and can only be granted when they are strictly necessary.
If someone breaches a superinjunction they may be found in contempt of court and could be imprisoned, fined or have their assets seized.
The use of superinjunctions, also colloquially referred to as gagging orders, gained prominence in the 2000s after a string of celebrity scandals.
A committee was set up in 2010 to examine their use following the Trafigura and John Terry cases. In the case of Trafigura, an oil-trading firm was granted a superinjunction against The Guardian to stop the paper publishing details of a report commissioned by the company into a toxic-dumping incident in Ivory Coast.
In the John Terry case, the former England captain was initially granted a superinjunction preventing a News of the World story about his private life. Journalist Andrew Marr also took out a controversial superinjunction in 2011 over an extramarital affair, and later admitted he felt âuneasyâ about using such an order.
Superinjunctions are now rarely used. According to a written parliamentary question answered in April 2024, there is currently just one superinjunction in force which was made in the Kings Bench Division of the High Court.
Following an inquiry into the use of superinjunctions in the 2000s, a mechanism was put in place to enable parliament to have a record of the number of superinjunctions currently in force. This is collected by HM Courts and Tribunals Service.
The Ministry of Defence told the court that it did not think it likely that the one superinjunction referred to in parliamentary questions was the one used in the Afghan leak case. This is because the Afghan superinjunction relates to national security and is therefore exempt from being reported. However as the MoD did not know if a second superinjunction was in place, it could not be sure.
Why was this superinjunction without precedent?
This superinjunction was granted âcontra mundumâ. Contra mundum, Latin for âagainst the worldâ, means it is applied to anyone and everyone.
The effect is that a person could be found in contempt of court if they shared any information about the injunction, whether or not they are participating in the proceedings.
There has been previous use of contra mundum injunctions, but High Court judges believed this to be the first contra mundum superinjunction.
This is also believed to be the first superinjunction granted to the British government .
How long has the superinjunction been in place?
The superinjunction was granted on 1 September 2023 meaning it was in place for more than 21 months.
Did the government apply for this superinjunction?
No, the government did not initially apply for a superinjunction. They applied for a âtime-limitedâ injunction for a period of four months. Mr Justice Knowles, the High Court judge who first heard the case, granted the contra mundum superinjunction proactively.
What have judges said about this superinjunction?
When the case came in front of Mr Justice Nicklin in September 2023, he commented on the exceptional nature of the injunction. He wrote that âsuch orders are wholly exceptional, require very clear and compelling justification, and must be kept under active review by the court.â
He added: âA superinjunction granted in proceedings contra mundum is, I believe, unprecedented. The court will want to give anxious consideration at the earliest point as to whether there remains a justification for such an order or whether some lesser restrictions ought to be imposedâ.
The case was passed to Mr Justice Chamberlain for all future hearings. In a request to the attorney general for the appointment of security-cleared lawyers in the case, Justice Chamberlain wrote that âas far as the court is aware, this is the first contra mundum superinjunction which has ever been grantedâ.
He described the effect of such a superinjunction in a judgement from November 2023 (but which can only now be reported), writing: âThe grant of a superinjunction to the government is likely to give rise to understandable suspicion that the courtâs processes are being used for the purposes of censorship. This is corrosive of the publicâs trust in government⌠the grant of a superinjunction has the effect of completely shutting down these mechanisms of accountability, at least while the injunction is in forceâ.
âIn this case, the policy decisions in question could themselves have implications for the lives and safety of many individuals. If the superinjunction is continued, they will be taken in a scrutiny vacuum. I work on the basis that ministers will do their honest best to take the decisions they consider in the national interest, but it is axiomatic in our system that decisions subject to public and parliamentary scrutiny are not only more legitimate, but are also likely to be better than ones taken in secretâ.
Why and when was the superinjunction lifted?
The Afghan data breach superinjunction was lifted by Mr Justice Chamberlain at 12pm on Tuesday, July 15. He made the decision to lift the order after defence secretary John Healey came to the view it was no longer necessary.
The Ministry of Defence told the court that he had considered the conclusions of a policy review commissioned by the government into the data breach and response to it. As a result of this review, the Ministry of Defenceâs assumptions on the risk posed to individuals named on the database had changed.
Mr Healey made the decision to close the Afghan Response Route (ARR) set up to evacuate those affected and to recommend the injunction be discharged.
Relocation invitations sent out under the ARR scheme will still be honoured, with an estimated 2,400 people still to come.
