Full case report

Coys Limited v Autocherish Limited & others

Reference [2004] EWHC 1334 (QB); [2004] EMLR 482
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 4 Mar 2004


Summary

Defamation – Libel – interim injunction – website publication – s.12(3) Human Rights Act 1998 – Rule in Bonnard v Perryman – test to be applied


Facts

The Claimants applied for an injunction against five out of seven defendants to restrain them from publishing or maintaining a website containing defamatory material about the claimants.


Issue

Whether the interim injunction should be granted.


Held

dismissing the application. The correct approach on interim injunctions in defamation cases is still as set out in Holley v Smyth [1998] QB 726 and the Court is bound by it. If it was open to the Court to rule on the applicability of Cream Holdings Ltd v Banerjee [2003] EWCA Civ 103 to defamation cases then that decision did not apply. On the facts the words complained were unarguably defamatory and there was evidence of an intention to repeat by some of the defendants. However, the Defendants raised affirmative defences of qualified privilege, fair comment and, in respect of a lesser meaning contended for by the claimants, justification. Since that was the position the rule in Bonnard v Perryman applied and the Court could not conclude that there was nothing to go before a jury for determination, R v Galbraith (1981) CLR 648 applied; Alexander v Arts Council of Wales [2001] WLR 1840 considered.


Comment

Tugendhat J had to decide this matter at the interim stage. The Judge held that he was bound by the decision in Holley v Smyth when considering an injunction in defamation and that s.12 did not lessen the effect of the rule in Bonnard v Perryman [1891] 2 Ch 269. The House of Lords did not shed light on the inter-relationship between s.12 of the Human Rights Act and libel in Cream Holdings and in its wake a challenge to the continued applicability of Bonnard v Perryman failed in the Court of Appeal (Greene v Associated Newspapers Ltd (21 October 2004).