‘Bonnard’ Libel Rule Reaffirmed

Court of Appeal: rule against prior restraint is HRA-compliant

An appeal in which a claimant was trying to challenge the established rules about the grant of libel injunctions has been dismissed. 

Martha Greene failed in her attempt to obtain an injunction to restrain the Mail on Sunday from publishing a story which centred on emails which it was alleged, and she disputed, she had sent to Peter Foster, a convicted con-man.  The context of the story was the Claimant’s role in purchasing a new house in central London for the Prime Minister’s family.  

The judge at first instance, Mr Justice Fulford, applied the long-established rule in Bonnard v Perryman that an injunction will not be granted in libel unless it is shown that the claim is bound to succeed, and a jury would be perverse to reject it. 

The judge rejected Ms Greene’s argument that in the light of the Human Rights Act and the House of Lords’ recent decision in Cream Holdings v Banerjee an interim injunction could now be granted in libel if the claimant were in a position to show that success at trial was likely. The judge gave permission to appeal.

The appeal was dismissed by Lord Justices Brooke (Vice President of the Court of Appeal), May and Dyson.

In another victory for press freedom, even though the Court of Appeal was prepared to assume that a right to reputation was among the rights guaranteed by Article 8 ECHR (see Radio France v France), it concluded that there was nothing in section 12(3) of the Human Rights Act 1998 that could “properly be regarded as weakening in any way the force of the rule in Bonnard v Perryman”.  The Court drew a distinction between confidence/privacy and defamation interim injunction cases, holding that if the less strict Cream Holdings test was applied to defamation, “the damage which would be done to freedom of expression and the freedom of the press” would be far more serious than “the damage that may on occasion be done by refusing an injunction”.

Click here for the full 5RB case report and judgment.