Article by Nicola Solomon published in The Author of Summer 2004 Vol. CXV No.2. Leading literary lawyer Nicola Solomon is Head of Publishing with solicitors Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652). She has kindly given AKME permission to reproduce this article, and can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
Last May while the world was waiting with mounting hysteria for the July release of The Order of the Phoenix, J. K. Rowling learned that the carefully built suspense was under threat. Three copies of the new book had escaped the printers in Suffolk, and been found by an unknown person who proceeded to offer the pages for sale to the Sun, the Daily Mail and the Daily Mirror. Swiftly, she went to the High Court armed with a team of lawyers and obtained an immediate injunction not only to stop the newspapers from publishing any part of the book, but also to prevent anyone from attempting to sell the leaked copies.
I am often contacted by distraught authors asking me to obtain an immediate injunction to prevent some wrongdoing. Perhaps it is to stop the publication of a book which, to the author's eyes, is full of horrendous mistakes. Or perhaps it infringes copyright or is defamatory. Sometimes it is to prevent the publisher from disposing of its assets to avoid paying money owed to the author.
An injunction is an immediate court order preventing someone from taking certain steps, and a defendant who fails to obey it can be imprisoned for contempt of court. An injunction can be obtained in a matter of days or, in extremely urgent cases, a matter of hours. Last year in November, one High Court judge while sitting in a traffic jam on London Bridge at 7pm on a Friday night imposed an injunction over his mobile phone to prevent the Guardian publishing rumours about Prince Charles. Because the case was so urgent and the perceived damage so great, the injunction was given purely on the evidence provided by the former royal servant, and the Guardian had no opportunity to put across its side of the story.
Injunctions are perhaps the most draconian powers the courts have and consequently catch the imagination of the public far more than the common legal remedy of financial compensation. They are however, extreme measures, used in exceptional circumstances, and are very expensive to obtain.
In what circumstances might you apply for an injunction and what would the court consider before granting one? First you must show that you have a good arguable case on a serious legal question. You must show for example that a substantial infringement of copyright or a serious breach of contract would occur if publication went ahead. When Tony Blair blocked a newspaper from publishing his former nanny's memoirs he claimed that it was to protect the legitimate privacy of his family life, and that the nanny would be in breach of her obligation under a confidentiality agreement. Often this hurdle is easily cleared, but the next is more complicated and difficult to overcome. The court must decide on a 'balance of convenience' whether the injunction should be granted. This means it must decide whether granting the injunction would cause more harm to the publisher than the harm you would suffer from the refusal of the injunction. In making its decision the court will consider various factors, the most important being whether financial compensation would be an adequate remedy for the breach. If for example your poem is published in a novel without your consent but you would probably have given permission had you been asked, the appropriate and adequate remedy would be to pay you a proper licence fee, and the court will not prevent publication. If however the likely damage is too difficult to assess or is outside the scope of money compensation, an injunction may be granted. Prince Charles claimed that it would not be possible to compensate him in monetary terms for the likely damage sustained to his reputation had the rumours of a compromising gay sex act with a former valet been published. Bloomsbury Publishing and J. K. Rowling did not know who was selling the illicit copies of The Order of the Phoenix so would not have been able to obtain money had they been leaked. An injunction may also be granted if you are likely to be sued; or if it is in the public interest to stop publication, for example if your publisher's error led your respected medical handbook to contain the wrong advice on first aid.
The problem authors face with the balance of convenience test is that a publisher is likely to be able to argue that it will suffer huge losses as the result of an injunction. If a book has already been printed and an injunction is imposed until the full trial of the action, the delay which will result is almost certainly going to damage the publisher (financially, at least) more severely than the author. The publisher will claim the book has become out of date, that vast amounts of money have been spent on its marketing, and that the publisher's reputation will be damaged as a result of not supplying the book. In some instances it may have to pulp the printed copies. Such factors are likely, in the eyes of the court, to outweigh your possible loss of revenue or the damage to your reputation.
This problem is compounded because whenever you ask for an injunction you must, except in exceptional circumstances, give a 'cross-undertaking' in damages. That is, you must show with reference to your assets that you will be able to pay any loss caused by the injunction that the publisher may suffer if you lose at the full trial. A publisher can easily demonstrate on paper that its losses, if it does not publish, will be high (though you may look at these calculations with a jaundiced eye, knowing the small returns you actually get when your book is published). Most authors would have to point to some major asset such as their house to show the undertaking was not worthless. This is not to say that a poor author can never obtain an injunction; the court will look at this requirement more leniently if your case is strong. For example if there has been a completely unauthorised publication of your whole work, the court may grant an injunction regardless of your means, since it is likely that you would win at trial.
Many injunctions aimed at publishers tend to raise issues of freedom of expression. In a defamation action a court will not normally restrain publication of a defamatory statement if the publisher contends that it will prove at trial that the statement is true. This is because freedom of speech is deemed by the court to be more important than a possible loss of reputation. The court will only ban the publication of obvious lies. Unfortunately, therefore, little can be done except wait and claim libel damages if someone makes damaging statements which they claim they can prove. Naomi Campbell demonstrated this all too clearly. Two years ago the supermodel sought to prevent publication of details of her visits to drug rehabilitation clinics. She had previously been very vocal in her condemnation of drug-taking and denied any allegations that she had used drugs herself. The court, however, did not grant the injunction she sought, and the Mirror exposed her as a drug addict. Miss Campbell subsequently sued the newspaper, was successful in her claim and was awarded damages.
The Civil Procedure Rules specify that the over-riding purpose of an injunction is to maintain the status quo pending the final outcome of the trial when it is just and fair to do so. It is therefore much easier to prevent a book being published than it is to insist on its recall. Injunctions are almost always to prevent an act rather than require one. You must therefore ask for an injunction promptly and certainly before the book is published. If you have unduly delayed (even if the book has not yet been published) you will not be granted an injunction, particularly if your delay has led the publisher to believe that it has done nothing wrong, and it has continued to spend money on the publication.
You may be able to obtain an injunction without telling the publisher of your application if the matter is so urgent that there is no time to contact the publisher, or if you can show that the publisher is likely to circumvent the application if forewarned - for example by publishing beforehand or shipping the books overseas, out of the jurisdiction of the court. One type of injunction which is often obtained without telling the publisher is a 'freezing order', which is used to prevent the publisher dissipating its property. These orders are harsh and are not granted lightly. In order to obtain one you must show a strong case against the publisher and that there is a real risk that it will dispose of its assets. A freezing order is only any use if the publisher has assets; it is futile against one which is about to go into liquidation and owes you royalties. The court will only grant a freezing order if you are owed a substantial amount of money, probably more than £10,000. If you do obtain an injunction without the publisher being present, there will usually be another hearing a few days later where the publisher will be able to put its side of the case and apply for the injunction to be lifted - as the Guardian successfully managed in the Prince Charles saga. If the injunction is lifted, you will normally have to pay the other party's costs as well as any damages caused by the injunction.
Because an injunction must be obtained urgently your solicitor will have to drop everything to learn the facts, prepare witness statements and other documents, instruct a barrister, and attend the application which may mean a long day in court. After the order is made it must be personally served on the publisher. Obtaining an injunction will therefore rarely involve legal costs of less than £10,000-£20,000. Most solicitors will ask you to pay up front. Even if the injunction is granted, the publisher will not be ordered to pay your costs unless and until you are successful at a full trial of the action, which is likely to be one or two years later. Even then you will not obtain the full costs. So it is only really advisable to pursue an injunction if the money involved is substantial or if the principle of the matter is so important that you are prepared to lose out financially in making the point. Not surprisingly therefore, whether it be Michael Douglas and Catherine Zeta Jones complaining about their photographs or the Queen overly concerned that the world will find out that her cornflakes are kept in Tupperware boxes, injunctions are often the pastime of the rich and famous.
Injunctions are an urgent and exceptional remedy in exceptional circumstances. In recent months there seems to have been a plethora of high profile cases perhaps giving the impression that injunctions are becoming easier to get or at least more widely used. It is more likely that this is merely indicative of an ever-increasing celebrity-centric society. The rudiments of injunctions remain the same. They are not an appropriate remedy where breaches are only minor or where financial compensation is adequate. You will not find it easy to obtain one where a publisher can argue there is no breach of contract, and they are impossible to obtain in a defamation case unless the remarks in question are an obvious lie. Don't therefore be surprised or downhearted if your solicitor informs you that you have a very good claim, that you are likely to obtain substantial damages, that letters should be written immediately and proceedings started if the response is not favourable - but that there is no point in applying for an injunction.
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