You don’t need any technical legal knowledge to understand the logic of this maxim. Put another way, the policy is that courts will not make orders that cannot be enforced because anything seen to be in the nature of an idle threat destroys credibility.
During the last few days we have seen the debate raging about the apparent breach, on Twitter, of superinjunctions obtained by wealthy celebrities. What is interesting (apart from trying to track down the tweets) is the jurisdictional aspect.
Apart from the fact that the tweeter is anonymous, some suggest that the disclosures bring no consequences because they were made from the US. Actually it is not simply a case of getting on a plane and going to another country to circumvent the jurisdiction of the UK or other domestic courts. That is a hole that can be plugged in line with principles applied in other realms of intellectual property and publication.
It still creates difficulty, and perhaps there is no huge amount of sympathy with all the outcry that there has been about superinjunctions.
It may be that there is no more sympathy for US billionaire hedge funder, Louis Bacon, if he is unable to enforce Mr Justice Tugendhat’s order in the High Court on Monday. Experts say that US-based companies could ignore or refuse to comply.
These are disturbing signs. I don’t say that because it is my industry and I am worried about my livelihood. The risk is that others follow suit (forgive the pun) and we have a free for all.
In many respects, the administration of the court system is already in a mess. We don’t want to add to that the dilemma of our judiciary being undermined.