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Pelling v Bruce-Williams [2006] EWCA Civ 1040

Dr Pelling’s application to set aside an injunction restraining publication is refused yet the injunction is discharged.

Court of Appeal: Wall LJ (25 July 2006)

Summary
Dr Pelling's application to set aside an injunction restraining publication is refused yet the injunction is discharged.

Background
In 1996 during proceedings under the Children Act 1989 Dr Pelling applied for his residence application to be heard in open court. The application was refused and Dr Pelling's appeal against the decision was dismissed as reported in Re PB (Hearings in Open Court) [1996] 2 FLR 765. In addition to dismissing the appeal the Court made an injunction preventing the publication of the name, address or any particulars which may lead to identification of the child.

The court's subsequent decision in Pelling v Bruce-Williams [2004] 3 FCR 108 changed the practice of the court. In that the court determined that anonymity is no longer automatic in children's cases and in fact has to be sought and justified. Dr Pelling argued that this decision had rendered the injunction nugatory by naming the minor and the parties in its judgment.

Dr Pelling applied to discharge, alternatively to set aside the injunction. Thorpe LJ, took the view that the injunction was spent, and refused the application on paper. However Dr Pelling successfully requested that Thorpe LJ's decision be reviewed by the Court of Appeal. Wall LJ made it clear at the outset of the hearing he was willing to discharge the injunction. However Dr Pelling wanted the injunction set aside as he argued it should never have been made. He objected to the terms of the injunction and the fact that the court did not hear him before the order was made.

Judgment
Held, discharging the injunction as it no longer fulfilled any function and was moreover now caught by the meaning given to section 97(2) by Clayton v Clayton, but refusing to set it aside.

Clayton makes it clear that the prohibition contained in s97(2) of Children Act 1989 lasts only as long as the proceedings themselves. Since the litigation was long since over Dr Pelling was therefore plainly entitled to have the injunction discharged. Wall LJ observed that an order such as that made in 1996 would not be made today without full argument. However in 1996 orders restricting the publication of names of children were the norm. Wall LJ was confident that even if Dr Pelling had been heard and allowed to cite substantial authority to the court the result would have been the same.

Dr Pelling attacked the wording of the injunction as being too wide. However Wall LJ took the view that the wording appeared to have been common form at the time and had any adverse consequences been threatened against Dr Pelling its wording would have been scrutinised and altered if necessary.

Read the full text of the judgment

Digest prepared by Lynsey Cade-Davies