Equity does not act in vain

A little over 3 years ago, three days before I was to sit my final exam, namely ‘Equity and Trusts’, my car was broken into and my schoolbag stolen. Irony of ironies, my schoolbag was empty for all but Equity notes-so, all the robber got was a good lesson in ‘fairness’ (for lay readers-Equity is essentially about fairness).

Equity itself is quite a curious topic, traceable back to the 12th century, and comprises a body of maxims which “reign over all laws”. Maxims include “those who come to Equity must come with clean hands”, “Equity sees that as done what ought to be done” and (importantly for our purposes as will become clear) “equity does not act in vain”.

I give this brief background because on Thursday the 28th of May, revelations were made in the Irish Parliament about an injunction which has been granted preventing the Irish media from reporting on a purported benevolent agreement between IBRC (a nationalised bank) and Irish media mogul Denis O’Brien. As a result of this injunction, the Irish media are not even reporting on the revelations which were made in Parliament (although an argument has been made here by Seán Ó Conaill that the issue can be reported). A good synopsis can be found here.

Injunctions are remedies which are issued by the courts pursuant to this equitable jurisdiction and accordingly are derived from the aforementioned equitable maxims. The important maxim for the purposes of this post is “equity does not act in vain”, as it may be important for the upcoming legal challenge to the current injunction being heard on Tuesday.

In 1985, former MI5 officer Peter Wright attempted to publish an autobiography, Spycatcher, chronicling his time as a secret agent, in defiance of the duty of confidence he owed to the Crown in relation to his services. The British Government immediately banned the publication from being released and obtained several injunctions precluding the media from reporting the national secrets contained in the manuscript. The book however was published and released overseas (it even reached the best-seller list in US) and, although not stocked in the UK, was privately imported in mass numbers. Accordingly, given the futility of the injunction, The Guardian and Observer sought to have it lifted. The House of Lords, by a 3-2 majority, decided that the injunction should remain in place for the time being, despite the acknowledgment that the order was effectively redundant (see for instance, Lord Ackner [1987] 1 W.L.R. 1248 at 1307). To this, Lord Oliver issued a powerful dissent:

[As] the proscribed material is available for public ventilation and discussion by everybody except those subject to the existing restraint, I question whether it can be right to continue that restraint against parties in no way concerned with flouting the court’s orders and to interfere with their legitimate business of publishing and commenting upon matters already in the public domain ([1987] 1 W.L.R. 1248 at 1318)

In the subsequent case ([1990] 1 A.C. 109) on whether there should be a permanent injunction, the House of Lords rejected the Attorney General’s case by a 4-1 majority and lifted the injunction. Lord Keith did so “[not on the basis of] any balancing of public interest nor upon any considerations of freedom of the press, nor upon any possible defences of prior publication or just cause or excuse, but simply upon the view that all possible damage to the interest of the Crown has already been done by the publication of Spycatcher abroad and the ready availability of copies in this country” ([1990] 1 A.C. 109 at 260)

Lord Brightman was similarly opined that the injunction no longer served any useful purpose in preventing the dissemination of the national secrets as the information was already in the public domain:

But if the matter sought to be published is no longer secret, there is unlikely to be any damage to the public interest by re-printing what all the world has already had the opportunity to read ([1990] 1 A.C. 109 at 267)

Lord Goff likewise followed on the basis that granting a permanent injunction would be redundant:

On any sensible view the information contained in the book was, at the date of trial, in the public domain. For this reason alone, in my opinion, the injunctions against the “Observer” and “The Guardian” should now be discharged ([1990] 1 A.C. 109 at 290; Lord Jauncey agreed at [1990] 1 A.C. 109 at 293)

There is an important lesson in this Spycatcher tale for the injunction which is currently constraining the Irish media. The revelation which was made in Parliament is freely available on the Government’s website. Similarly, although the Irish media is injuncted, the British media may freely release details about the issue, which renders the injunction particularly futile given the free-flow of information via newspapers websites which don’t have a paywall (such as The Guardian). Given such a state of affairs, it is arguable that the Irish Court next week should lift the injunction as the House of Lords did in Spycatcher, not because the information is in the public interest per se (although it clearly is, and that makes the case for releasing the information stronger in and of itself), but that to maintain the injunction is futile. Surely the Irish courts will follow the equitable maxim that equity does not act in vain.

Postscript: Of course, if my legal analysis here is slightly flawed, it is only to be expected given that I don’t have my Equity notes to consult!


About taxatlincolnox

Tax law academic. With this blog, I seek merely to contribute to the debate. All thoughts are mine, of course.
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