Cream Holdings Ltd v Banerjee & Others (HL)
Reference:  UKHL 44;  1 AC 253;  3 WLR 918;  4 All ER 617;  EMLR 1; The Times 15 Oct 2004
Court: House of Lords
Judge: Lords Nicholls, Woolf, Hoffmann and Scott and Baroness Hale
Date of judgment: 14 Oct 2004
Summary: Human Rights - Breach of confidence - Injunction - interim relief - Freedom of expression - s.12(3) Human Rights Act 1998 - Real Prospect of Success
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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 confidential 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, as an ex-employee, was in clear breach of her duty of confidence. 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 Court of Appeal held that the true construction of “likely” was “more probable than not” and that the threshold test was “a real prospect of success, convincingly established.”
(1) What was the correct test for injunctive relief under s.12(3) of the Human Rights Act 1998; (2) Whether, on the facts, the injunction should be discharged.
Allowing the appeal. (1) As a general rule the courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely then not’) succeed at trial. Certain circumstances will demand flexibility in the degree of likelihood of success that will suffice, and courts will be prepared to depart from the general rule. Lord Nicholls identified disclosures of information that would have adverse consequences to a person’s safety or destroy confidentiality as circumstances that might justify a departure from the general approach. A rigid approach would be unworkable, set the degree of likelihood too high and be contrary to what Parliament must have intended. (2) The injunction restraining publication would be discharged in relation to information already passed by Ms Banerjee to the Liverpool Echo.
The case essentially approves the “more likely than not” formula, but also reserves to the Court a power to grant an injunction were substantial injustice would be done to a Claimant if an interim injunction were refused pending a full hearing. It leaves unexplored (and therefore unresolved) the anomaly of Bonnard v Perryman  2 Ch 269. In relation to a threatened publication of a libel against the Claimant, the Court has no power to grant an injunction against a Defendant who contends that the publication is justified. In all other causes of action, Cream Holdings provides the Court with the power to grant an injunction to “hold the ring” in a deserving case.