Defamation – Injunction – s.12 Human Rights Act 1998 – Likelihood of success – Threshold for grant of injunction – Bonnard v Perryman test
The Claimant sought to restrain the publication by the Defendants of allegations that she had communicated with convicted criminal Peter Foster by email as part of a business relationship. The Claimant argued that s.12(3) HRA governs interim relief in defamation proceedings, and that accordingly, following the recent HL decision in Cream Holdings v Bannerjee, she need only establish a likelihood of success at trial to secure the desired prior restraint. Fulford J rejected her argument and, holding that she had failed to satisfy the Bonnard v Perryman test, rejected her application for an injunction. He did however hold that if s.12(3) were indeed the correct test, then he would have granted the injunction sought. The Claimant appealed.
Whether s.12(3) HRA displaces the rule in Bonnard v Perryman [1891] 2 Ch 269 in applications for injunctions in defamation cases
Dismissing the appeal, the rule in Bonnard v Perryman has not been affected in any way by s.12(3) HRA. The damage that may be done by a refusal to grant an injunction is insignificant in comparison with that which would be done to freedom of expression and the freedom of the press by relaxing the rule in Bonnard v Perryman. That rule is based upon the importance of freedom of speech, the constitutional importance of a jury in defamation cases, and the pragmatic ground that the court cannot usually properly assess whether what is to be said is true or not. To grant an injunction on a mere likelihood would seriously weaken the effect of Article 10.
While a challenge to Bonnard v Perryman was to be expected after the HL decision in Cream Holdings, the speed and circumstances in which this case appeared may have surprised many. The result will not have. The Court of Appeal once again restated the reasons for the rule, and there was little to distinguish this case from the many that have preceded it. However, despite the emphatic nature of much of Brooke LJ’s judgment, a defamation case involving a more significant Article 8 element may prove a sterner test for the application of Bonnard v Perryman.