While newspapers have been busy battling against the rise of privacy injunctions, a new threat to free speech has appeared in the form of pre-trial libel injunctions.

For more than a century, the ‘rule against prior restraint’ has been a solid feature of English libel law, inhibiting judges from issuing gagging orders on an ‘interim’ basis before trial of all the issues.

But there is now cause for concern as interim libel injunctions seem to be on the increase, just like their notorious privacy counterparts.

Take two recent judgments of the High Court’s top media law judge, Justice Tugendhat.

The case of ZAM v CFW & TFW involved a libel claim that was triggered by a financial dispute over substantial family trusts.

The claimant applied for an injunction because he feared defamatory statements were about to be published about him on the internet. He had received threats that allegations would be published online in a “global crusade” against him.

Curtailing open justice, the judge agreed to grant an anonymity order – believed to be the first of its kind in a libel case – which reduced the case’s title to a string of letters.

Case names in privacy actions are, regrettably, often an alphabet soup of initials but it would be a worrying extension if anonymised proceedings became a regular feature of libel proceedings.

Justice Tugendhat also granted what he described as a “rare” interim libel injunction.

He said: “It is well known that it is rare for the court to grant injunctions on interim applications in defamation actions.

“However, the court has jurisdiction to do so and will do so in an appropriate case.

“On the information before me, I am satisfied that there is a prima facie case of libel, that there remains a threat by the defendants to publish, or further publish, the words complained of, and that if publication or further publication occurs the claimant will suffer injury which cannot fully be compensated in damages.

“I am in no doubt that the words complained of are defamatory. Nothing has been stated by the defendants personally to the effect that they have a defence of justification or any other defence.”

The adjective “rare” may not be entirely apt, however, as it appears that in outlining his thinking, the judge was able to copy, virtually word for word, the reasons he himself had given when granting another “rare” interim libel injunction just six months previously, in the case of Farrall v Kordowski.

In that case, the claimant had been defamed on the “solicitorsfromhell.co.uk” website. The publisher had not put forward anything to the effect that he had a libel defence, so the judge granted an interim gagging order.

Clearly, the circumstances in these two cases were rather extreme. Neither involved the press seeking to publish a defamatory news story, and in Zam the claimant relied was able to rely on harassment as well as libel in successfully obtaining the interim gagging order.

Nevertheless, there is already considerable unease about the chilling effect on free speech of prior-restraint in privacy cases without adding libel cases to the controversy.

The media will be keen to ensure that the emergence of the first anonymised interim libel injunction is not the thin end of a wedge, and will hope Lord Neuberger’s long-awaited guidance on the granting of injunctions – expected to be published before Easter – strikes the right balance for the public interest in freedom of expression and open justice and in a democracy.