The interim defamation injunction has long been considered a rare breed; indeed it has been 127 years since the common law rule in Bonnard v Perryman  2 Ch 269 was first established, preventing claimants from obtaining interim libel injunctions in all but the most exceptional circumstances.
That was until June this year, when it seems Nicklin J may have, if not quite blown it off, at least cracked open the long-sealed door to interim libel injunctions in his judgment in R (Taveta Investments Limited) v Financial Reporting Council & Ors  EWHC 1662 (Admin) (“Taveta”).
The common law rule in the case of Bonnard v Perryman provides that although the courts possess a jurisdiction to restrain publication, “in all but exceptional cases” they should not issue an interlocutory injunction to restrain the publication of a libel which the defendant says it will seek to prove is true except where it is clear that that defence will fail. The test in Bonnard is a much higher threshold than in claims for interim injunctions in privacy claims, where the applicant only need establish that his claim is more likely than not to succeed at trial (Cream Holdings Ltd v Banerjee ( AC 253). Lord Coleridge CJ in Bonnard v Perryman said that there was a particular need not to restrict the right of free speech in libel cases by interfering before the final determination of the matter by a jury otherwise than in a clear case of an untrue libel.
The introduction of s.12 of the Human Rights Act in 1998 caused some claimant lawyers to raise their hopes that the test had been lowered, stating as it does that applications for interim relief that restrict the exercise of Article 10 could be ordered if “the court is satisfied that the applicant is likely to establish that publication should not be allowed” (s.12(3)).
Alas for claimant libel lawyers it was not to be so. The rule in Bonnard v Perryman was subsequently followed by the Court of Appeal in Greene v Associated Newspapers ( QB 972) which determined that it was based upon (1) the importance of freedom of speech; (2) the constitutional importance of a jury in defamation cases; (3) that until there has been disclosure of documents and cross-examination at trial, the court cannot usually properly assess whether what is to be said is true or not; and (4) that damages, including aggravated or exemplary damages, were a sufficient remedy where Defendants fail to prove the truth of what they chose to publish. The Court 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”.
There has, however, been some movement in this area of law in recent years. In Bonnard v Perryman, Lord Coleridge CJ found that it was sufficient for a defendant to merely assert an intention to justify the allegations in order to successfully resist an interlocutory injunction to restrain the publication of a libel. In Sunderland Housing Group v Baines ( EWHC 2359 (QB) however, Eady J held that the defendant’s assertion of an intention to justify needed to be scrutinised more closely, in circumstances where the Court is required to balance an applicant’s Article 8 rights with a defendant’s Article 10 ECHR right to freedom of expression. Eady J stated:
It seems to me at least right for a defendant who seeks to resist an injunction against publication of defamatory words to identify the defamatory meaning or meanings which he intends to justify, and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings. That, it seems to me, must be the very minimum. Of course, there is nothing to prevent a defendant, if he or she wishes, from adducing evidence to show the supposed strength of a proposed plea of justification but that is not something which is a necessary ingredient.
Latterly, in 2014 the introduction of the Defamation Act 2013, amongst over things, reversed the presumption that libel trials would be reserved to a jury (under s.11 of the Act). Since the Act came into force, the Court has not ordered a single jury trial in cases where s.11 of the Act applied.
Taveta involved a claim for interim relief to restrain publication by the Financial Reporting Council (“FRC”) until Taveta’s claim for judicial review has been determined of a number of documents which it said contained numerous factual inaccuracies and serious criticisms of Taveta’s “management” of BHS (which had been owned by a subsidiary of the Taveta group at the time of the audit), to which they said they had never had any opportunity to respond. Nicklin J handed down judgment on 29 June 2018.
Nicklin J considered that, as FRC is a public body, the test for the grant of injunction was higher than that applied in private law proceedings. Restating the judgment of Laws J in R -v- Advertising Standards Authority ex parte Vernons Organisation Ltd  1 WLR 1289, 1293E-1294B, he said:
“If a private individual will not be restrained from expressing his opinion save on pressing grounds I see no reason why a public body having a duty, other things being equal, to express its opinion should be subject to any less rigid rules…
…I do not consider that the effects of that publication are damaging to the applicant in a manner which would be so irreparable, so past recall as to amount to a pressing ground, in the language of Strasbourg, a pressing social need, to restrain this public body from carrying out its function in the ordinary way.” 
The Judge then expressed his concern over whether setting the bar so high is correct or justifiable any longer. He identified the following reasons:
- The removal of the right to jury trials removed a primary justification for the rule in Bonnard -v- Perryman, which was that determination of meaning ought to be reserved to a jury. Nicklin J added that “in any event, when an issue arises in public law proceedings concerning the alleged publication of defamatory statements, the matter has always been resolved by a judge sitting alone and not by a jury.” 
- The presumption that Article 10 (right to freedom of expression) should hold priority over Article 8 (including the right to reputation) is no longer justifiable, because it is inconsistent with the jurisprudence of the ECHR. Nicklin J stated that “the authorities identify the correct test whenever Article 10 and Article 8 interests conflict as that in In re S (A Child)  and the test to be applied at the interim stage as that provided by s.12 Human Rights Act 1998.” 
In this instance however Nicklin J felt bound by the prior authorities. He stated:
“Notwithstanding my real misgivings that this line of authority has given a presumptive priority to Article 10 that can no longer be justified, I do not feel able to depart from it. The principle is too well-established, and the doctrine of precedent means that I am bound to follow it”. 
Nicklin J’s judgment asks the key question of whether the continuation of the rule in Bonnard v Perryman is tenable any longer, in light of the abolition of jury trials and ECHR jurisprudence on the equal weight of Article 8 and Article 10 rights.
Although the Judge ultimately felt unable to break out of the constraints of Bonnard v Perryman in this case, his judgment can be seen as an invitation to claimant practitioners to once again challenge the rule, although it seems clear that it will require a decision of an appellate court.
Helena Shipman is an Associate a Carter-Ruck