The Supreme Court has handed down judgment in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust; Haastrup v King’s College Hospital NHS Foundation Trust [2025] UKSC 15. The judgment contains important guidance on injunctions restraining speech on matters of public interest.
The appeals concerned injunctions preventing the identification of clinicians in two ‘end of life’ cases. The parents of two deceased children wish to speak publicly about the care their children received from the Appellant NHS trusts and, in doing so, be free to identify the NHS staff who were involved in their children’s care. Injunctions below prevented disclosure of the treating clinicians’ identities, to protect them from potential abuse by third parties. The Supreme Court has ruled that those injunctions should have been discharged, and has given guidance on the proper approach to restraints on speech of this kind.
The Court clarified that that injunctions of the kind made in these cases could, while the child is alive, be granted (i) under the High Court’s “parens patriae” powers to protect those who cannot protect themselves, (ii) under the High Court’s inherent jurisdiction to protect the administration of justice, (iii) under the jurisdiction recognised in Broadmoor Special Hospital Authority and another v Robinson [2000] QB 775, to prevent interference with a public authority’s performance of statutory functions, or (iv) on a claim by the clinicians themselves founded on domestic causes of action: [100]. After the child has died, any continuation of the injunction or fresh injunction should be sought on the basis of the Broadmoor jurisdiction or on a claim by the clinicians themselves: [102]-[103]
As for the principles to be applied, the Court emphasised that domestic causes of action, such as s defamation, trespass, breach of confidence, harassment contrary to the Protection of Harassment Act 1997, infringement of the processing regime established by the General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Act 2018, and misuse of private information and invasion of privacy, are the means by which Article 8 rights are secured. The law having developed in the past two decades to meet the requirements of the European Convention on Human Rights, the starting point in disputes regarding privacy should be the relevant domestic cause of action, rather than the Convention itself: [91]-[93].
The Court also reaffirmed that, though it may be necessary to protect public servants from offensive, abusive or defamatory attacks calculated to affect the performance of their duties, public servants acting in an official capacity may be subject to wider limits of acceptable criticism than ordinary citizens, and that the requirements of protecting them have to be weighed against the interests of freedom of the press or of open discussion of matters of public concern: [177]. Accordingly, an injunction granting permanent anonymity to all hospital staff involved in end-of-life cases, regardless of the individual case, would therefore not be compatible with the Convention: [180].
Tom Cross KC and Raphael Hogarth acted for the Free Speech Union, intervening, instructed by Branch Austin McCormick LLP.
