Ruling that the injunction should be discharged, but leaving it in place pending an appeal to the Supreme Court:
1)The court rejected the argument that the injunction should be discharged because the present case has stimulated a public debate to which publishing the protected information would contribute. It is not permissible for the media to stir up debate about an injunction to which they are subject and then rely on that as a ground for discharging the injunction.
2) As to the argument that the court should not discharge an order merely because it has met with disobedience or defiance, the court drew a distinction between succumbing to disobedience or defiance, and accepting that there has been and is likely to be extensive dissemination of the material. In the latter scenario, the court must consider on the facts whether the order should be maintained.
3) The Claimant is likely to establish a breach of Article 8 ECHR at trial, but, despite the limited public interest in the proposed story, is not “likely” to obtain a permanent injunction at trial (as required section 12(3) Human Rights Act 1998 for the court to grant an interim injunction), because:
i. Knowledge of the protected information is now so widespread the confidentiality is probably lost;
ii. Must of the harm the injunction was intended to prevent has already occurred;
iii. The material which the Defendant wishes to publish is still private, but it will not be a shock revelation as it would have been, rather the intrusion into the lives of PJS and family will be an increase of what they are already suffering;
iv. If the interim injunction stands, news stories about it will continue up to trial;
v. NGN’s Article 10 rights have to be balanced against PJS’ Article 8 rights. The need for this balance means there is a limit to how far the courts can protect individuals against the consequences of their own actions;
vi. As a result of the publicity the weight attaching to the Claimant’s Article 8 rights has reduced, such that it cannot now be said that they will prevail over NGN’s Article 10 rights such as to warrant a permanent injunction;
vii. The court should not make order which are ineffective. It is inappropriate to ban people from saying that which is common knowledge. This is relevant to the court’s exercise of its discretion as to whether to grant an injunction.
4) The position of the children is a significant consideration but not a trump card. It is now a less material consideration, as whether or not the court grants the injunction it is inevitable that the children will learn about these matters in due course.