Court Order

18th May 2017 - Court Order commentary
A full summary of the Judgment given on Monday will be available for viewing in the next few days. However, in the meantime, the following extracts from that summary may help readers to understand how damaging the campaign against Worthington has been and why we were not prepared to allow such a campaign to continue against Newco

"Injunctive relief restraining publication pending trial has ordinarily been “rare” due to the common law rule in Bonnard v Perryman (1891) that a Claimant must show that any Defence was ultimately bound to fail before such an application could be granted. This approach has long been based upon the reluctance of the Courts both before and after the Human Rights Act 1998 to interfere with individual rights to freedom of expression before such time as the Court could hear the evidence with the benefit of cross-examination. The background to this reasoning is set out in William Coulson and Sons v James Coulson and Co (1887) 3 TLR 846 where Lord Coleridge said:
“To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore, the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction."  

In addition to this general rule, section 12(3) of the Human Rights Act 1998 modifies the usual American Cyanamidtest by supplanting the requirement that the application show a “serious issue to be tried” (traditionally a low threshold) with the more stringent requirement that the applicant show they are “likely to succeed” at trial (Cream Holdings v Banerjee). 

Firstly, the Court found "no difficulty" in holding that the Claimants were likely to succeed at trial on the evidence before it. Although the intervention of the Court was “rare” in these circumstances, the power to make such an Order existed and could be utilised. Injunctive relief was, exceptionally, appropriate until further order/trial. The Court found that the publication was clearly libellous and capable of causing serious harm. In particular, the learned Judge noted that the publication was likely to "unfairly undermine public trust and confidence in the Claimants and their businesses". Even though the publication had been removed prior to the hearing, the Court found that there still remained a real possibility that the website may be re-uploaded after the application hearing. 

The Claimants made detailed submissions on the falsity of the statements made in the publication. Whilst ..no formal defence had been filed.. the Court was still minded to consider the allegations made and the evidence submitted in response. In considering the totality of the material before it (which included some 11 months-worth of other publications which effectively set out the Defendant’s basis for making allegations of misfeasance) the Court arrived at the conclusion that the Claimants were likely to succeed at trial in showing the words complained of to be libellous and untrue. 

This is one of the first instances in which the Queen’s Bench Division has granted interim relief in a libel action where no reliance was placed on privacy/confidence or the Protection from Harassment Act. Whilst the granting of relief was "exceptional" (per Greene v Associated Newspapers [2004]), the Court found that this was a case which merited the interference of the Court before final determination. 

As such, injunctive relief was appropriate so as to limit the potential for harm caused by the publication. 

The judgment also shows that whilst the absence of any Defendant is likely to increase chances of success, the burden was still on the Claimant to show that they were likely to succeed at trial and that any Defence would be bound to fail. It was not enough to simply submit that the Defendant bore the burden of proving the statements made to be true and the Claimant was still bound to put forward a positive case."