39. The argument was rejected. Lord Oliver acknowledged at p 224 that “[e]quity, in general, acts in personam and there are respectable authorities for the proposition that injunctions, whether mandatory or prohibitory, operate inter partes and should be so expressed (see Iveson v Harris: Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406)”. Nevertheless, the appellants’ argument confused two different things: the scope of an order inter partes, and the proper administration of justice (pp 224-225):
“Once it is accepted, as it seems to me the authorities compel, that contempt (to use Lord Russell of Killowen’s words [in Attorney-General v Leveller Magazine Ltd at p 468]) ‘need not involve disobedience to an order binding upon the alleged contemnor’ the potential effect of the order contra mundum is an inevitable consequence.”
40. In answer to the objection that the non-party who learns of the order has not been heard by the court and has therefore not had the opportunity to put forward any arguments which he may have, Lord Oliver responded at p 224 that he was at liberty to apply to the court:
“‘The Sunday Times’ in the instant case was perfectly at liberty, before publishing, either to inform the respondent and so give him the opportunity to object or to approach the court and to argue that it should be free to publish where the defendants were not, just as a person affected by notice of, for example, a Mareva injunction is able to, and frequently does, apply to the court for directions as to the disposition of assets in his hands which may or may not be subject to the terms of the order.”
The non-party’s right to apply to the court is now reflected in CPR rule 40.9, which provides:
“A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.”
A non-party can also apply to become a defendant in accordance with CPR rule 19.4.
41. There is accordingly a distinction in legal principle between being bound by an injunction as a party to the action and therefore being in contempt of court for
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