Cream Holdings Ltd v Banerjee & Another (CA)
Reference:  EWCA Civ 103;  Ch 650;  2 All ER 318;  EMLR 323;  3 WLR 999;  EMLR 323
Court: Court of Appeal
Judge: Simon Brown LJ, Sedley LJ, Arden LJ
Date of judgment: 13 Feb 2003
Summary: Breach of confidence - Injunction - Freedom of expression - s.12(3) Human Rights Act 1998 - Real Prospect of Success
Instructing Solicitors: Wacks Caller for the Claimant. Brabners Chaffe Street for the Defendants.
The second Defendant’s newspapers published allegations by the first Defendant, a former in-house accountant of the Claimant, of financial irregularities within the Claimant. The allegations were supported to a degree by documents of the Claimant’s which the first Defendant had copied (without permission). The Claimant obtained injunctive relief against the planned publication of further allegations, but did not complain about the article, claiming that the first Defendant was in clear breach of her duty of confidence. The court however refused to order the return of the documents to the Claimant. The Defendants appealed, relying on s.12(3) of the Human Rights Act 1998, which required the court to be satisfied that the Claimant has established that it is “likely” that that the publication should not be allowed. The Defendants argued that the judge had wrongly applied a test of “real prospect of success” to granting injunctive relief, rather than that of “more likely than not”.
What was the correct test for injunctive relief under s.12(3) of the Human Rights Act 1998
On a true construction of s 12(3) of the Human Rights Act 1998 the word ‘likely’ does not mean more probable than not. The threshold test to be applied when considering whether or not to grant an injunction to prevent publication, is that of a real prospect of success, convincingly established. When applying that test a court is required to consider the merits of the claim for injunctive relief so as to reach a judgment as to the prospects of eventual success, and cannot grant relief unless satisfied on cogent evidence that the claim does indeed have a real prospect of succeeding at trial notwithstanding the defendant’s conflicting right to freedom of expression.
The Court of Appeal’s interpretation of s.12(3) appears to conflict with statements made in Parliament by Jack Straw, the then Home Secretary, who stated that s.12 was intended to set “a much higher test” for obtaining interim injunctions restraining freedom of expression. Whether the decision will have an impact on the principles relating to defamation injunctions remains to be seen. It is at least arguable that s.12(3) applies equally to defamation injunctions, thereby undermining Bonnard v Perryman  2 Ch 269.