gagging orders

In commercial litigation gagging orders are used to supplement freezing orders, search orders and orders requiring businesses and individuals to provide information. Provision to maintain secrecy of orders prior to execution forms part of the standard search order and may be applied for in the context of other orders to ensure that the purpose of the court action is not destroyed, frustrated or interfered with.

Form of Gagging Orders

The standard text of search orders includes the provision:

Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against him by the Applicant until 4.30 p.m. on [the return date] or further order of the court.

This is a general prohibition. Failures to obey restrictions such as this would likely amount to a contempt of court, rendering those responsible for the disclosure to fines, penalties and/or imprisonment. When the claimant is aware of specific individuals who may be contacted by the respondent to the order, those persons names may be expressly included into the order.

Gagging orders serve to protect the integrity of the court process, to prevent the defeating the purpose of the Court order being made and to prevent further damage being suffered by the applicant for the search order by other wrongdoers being given notice of the search order. Such orders may included any interim relief, where the circumstances fairly require it to be the case.