Court: Queen's Bench Division
Judge: Mr Justice Tugendhat
Date of judgment: 10 Oct 2011
Summary: Defamation -- Injunctions - Without Notice Injunctions - Bonnard v Perryman - Practice & Procedure - s.110 Patents Act 1997 - Unauthorised Claim of Patent Rights
Christina Michalos KC (Defendant)
Instructing Solicitors: Taylor Hampton
The Claimant had obtained a without notice injunction from the vacation judge prohibiting the Defendant from “defaming the Claimant or from making or publishing any statement which is a libel of or malicious falsehood about the Claimant.” There were two defamatory publictions complained of – a letter to the Claimant’s patent attorneys (in response to a cease and desist letter) and an email published to one recipient. The Claimant contended that the defamatory meaning of both publications was that the Claimant was guilty of fraud. The Defendant contended that the publications bore the lesser meaning that there were grounds to suspect that Claimant was guilty of fraud and that it was intended to plead justification and qualified privilege in respect of the letter to the patent attorneys. Amongst the matters in issue was whether there were grounds to suspect the Claimant was in breach of s.110 of the Patents Act 1977 which makes it an offence to falsely represent items for sale are patented if they are not. The Defendant contended that it was clear that there was evidence to support a justification defence and that the injunction should be discharged as falling foul of the rule in Bonnard v Perryman.
Whether the injunction should be continued to trial – whether the injunction was contrary to the rule in Bonnard v Perryman (generally no injunction will be granted prohibiting publication of defamatory material if the Defendant intends to justify)
The injunction would be discharged. Following Bonnard v Perryman  2 Ch 269, Greene v Associated Newspapers  2 WLR 281 and Holley v Smyth  QB 726, that where the Defendant says he intends to plead justification, for the Court to grant an injunction the Claimant must establish that a judge would be bound to withdraw such issues from the jury and that a plea of justification must fail if put before a jury which was not perverse. There were 2 lever arch files of evidence on the application amounting to just under 700 pages including numerous witness statements.It would not be appropriate for the Court to express any views at all as to the likelihood of either the Claimant or the Defendant succeeding at trial. The Court had no material expertise in patent law and it was impossible to decide that there was nothing at all in the Defendant’s argument. The issue was whether the Claimant was able to overcome the very high threshold required to obtain an injunction and he had not.
A reminder of the very high hurdle facing a Claimant seeking an injunction in a defamation case. It serves as a reminder to practitioners to comply with the CPR requirements on a without notice application. The Court also expressed “disquiet” that the application had been made without notice and referred to the importance of complying with CPR 25 and the practice direction to that part. The Court also expressed concern as to the generally terms of the order that had been applied for stating that the terms must set out specifically what it is the Defendant is restrained from publishing.