Why a much-debated celebrity gagging order didn't apply in Scotland

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Solicitor Iain Rutherford of Scottish legal firm Brodies explains why an injunction taken out by a married celebrity gave protection to him in England and Wales - but not Scotland.

The Court of Appeal has held that the interim injunction banning the naming of a married celebrity who it is claimed participated in a threesome has been lifted.

However, as the celebrity can still appeal to the Supreme Court, he cannot be named - yet.

One of the grounds to lifting the reporting ban was that the allegations were now widespread.

This was due to publication of the story in Scotland and other countries. It was published north of the border as the injunction did not apply outside England and Wales.

As Scotland is a separate legal jurisdiction, foreign judgments, including those from England and Wales, require to be registered in Scotland to work.

However, a foreign judgment can only be registered in Scotland if it is a final order of the court.

Interim orders are issued during the course of an action for protective purposes until the court has the opportunity of hearing the case and making a final order.

The gagging order obtained by the celebrity was an interim injunction. It was not a final judgment and so could not be enforced in Scotland.

What could have been done in Scotland?

If the celebrity had wanted to obtain protection in Scotland, the celebrity would have needed to go to the Scottish court seeking interim interdict (the Scottish term for an interim injunction). This could be done in two ways:

  • fresh court proceedings in Scotland seeking an interim interdict
  • or an ancillary action seeking an interim interdict on the basis of the English proceedings.

There is little practical difference between the two approaches.

If an interim interdict had been granted under either of those two options then it would have stopped the printed publication in Scotland and the Court of Appeal might have come to a different decision.

So, what's going to happen now? On Monday the court gave the man time to apply to take his case to the UK Supreme Court.

In the ruling, they said there must be no publication leading to disclosure of the celebrity's identity before 13:00 BST on Wednesday.

The celebrity - who has young children and whose spouse is also well-known - has until 10:00 BST on Tuesday to submit arguments to the Supreme Court.

It will then decide whether to hear the case - and therefore extend the reporting ban - or to throw it out, leading to the order being lifted.