Seeking a super-injunction is never going to make a scandal go away

As he contemplates the rubble of his demolished reputation, Sir Philip Green is entitled to wonder where it all went wrong?

The obvious answer lies with the man himself, that he was a tycoon with a management style that belonged to a different age, that he failed to keep pace with the times, to evolve, to absorb a very changed way of doing things. At the heart of that, of course, may have been the traits of arrogance and hubris – that he simply did not see the need to alter, to concede.

There could have been other factors at play, however. On the BHS debacle, Green stuck rigidly to the legal rule book. He was not under any obligation by law to plug the pension deficit after he sold the store chain. Forget the moral duty, or how his refusal to pay would play out in the court of public opinion – there was not any strict requirement for him to shell out a penny.

I’ve no idea if that was the advice he received from his lawyers. In all likelihood, that is what they did tell him – it’s not legal rocket science after all. Whether his public relations advisers also warned him that his image would take a subsequent battering, I don’t know either. Again, though, it would hardly be genius if they did – the reaction of the media and politicians was entirely predictable.

Let’s assume they did, but Green chose to ignore them, believing he could brazen out any criticism, that he would always prevail.

Which brings us on to the latest catastrophe to engulf him. Same as before, none of us are privy to the opinion of his legal team. By law, he was fully entitled to seek a super-injunction, preventing publication of the allegations against him by his former employees concerning sexual harassment and bullying – claims that he denies – and barring disclosure of even the very existence of the injunction.

Did his PR experts counsel against? And if they did, were they listened to? I can’t say. But if they had done, their suggestion was not followed. Anyone with a close understanding of how the media works would not have told him to go for the super-injunction.

Time and again, this measure has proved to be a red rag to a bull. Repeatedly, the identity of the person who has secured it, and the accusations that provoked it, have been exposed – usually via social media, where such revelations are regarded as sport, and then the mainstream media.

In Green’s case, there was a twist, in that Lord Hain chose to name Green in parliament under privilege, and from then on the retailer’s best efforts to suppress the stories were doomed to fail.

The miscalculation here was regarding the response to the super-injunction. Far from being cowed, the press and their friends in politics see them as something to be attacked, to be circumvented.

There’s a belief held by lawyers and thence their clients, that their heavy stick will beat the opposition into submission. Clearly, they’ve never worked in a newspaper.

I’m often informed by clients that they’re going to sue a newspaper, to seek an injunction, to press for an apology and compensation, that they will be taking legal action. To which I say, please think again.

The sending of a lawyer’s letter is a red rag. It raises the temperature. What may have been a relatively innocuous report not noticed by many, is instantly elevated into a cause celebre for the newspaper. The editor may not even give the letter a second glance before dispatching it to the legal department. They will come back with their view, but the editor will have instructed the news editor to second a specialist investigative reporter to dig into the complainant – deeper than the newspaper has gone to date.

The involvement of lawyers, the threat of a lawsuit, is a declaration of war. In the end, the client may win out, and a correction duly appears. But the process will be slow, and in the course of acquiring it, the newspaper has become their implacable enemy.

Far wiser to try and address the issue without recourse to lawyers, to seek a quick letter for publication correcting the article or denying them. Perhaps the suggestion of a letter for publication could be accompanied by the offer of an interview or a further article. Whatever, it is important to open up a channel of communication with the paper, and to maintain it. The alternative is far worse.

In Green’s case, he obtained a super-injunction. Why he did not sit back and obtain normal injunctions to stop publication of the former workers’ stories in the ordinary way and hammer the media if they broke them, is hard to fathom.

It’s impossible to see where the merit in the super-injunction lies. It’s widely perceived as a legal device only available to the super-rich, one that is draconian in its application.

For journalists and politicians making it look ridiculous, having a tilt at the judge who awarded it, and the lawyers who sought it, is regarded as a badge of honour. The legal eagles underestimate totally the lack of veneration afforded to a system that brandishes a weapon seen as restricting free speech.

That turns the episode into something other than an attempt to tell some lurid tales about a businessman. Defeating the super-injunction becomes a matter of principle, one that unites all the press. And that, as Green found to his cost, and his spin doctors should have forewarned him, makes it extremely dangerous indeed.

Chris Blackhurst is a former editor of The Independent, and director of C|T|F Partners, the campaigns, strategic, crisis and reputational, communications advisory firm