Cream Holdings Limited and others v Banerjee and others

This appeal concerns the meaning and application of the word 'likely' in section 12(3) of the Human Rights Act 1998 where an interlocutory injunction would restrain publication and so affect the Convention right to freedom of expression. The House held that 'likely' does not have a single rigid meaning; ordinarily an applicant for prior restraint must demonstrate that it is more likely than not that he will succeed at trial, but the required degree of likelihood is flexible and may be lower where special circumstances justify temporary protection (for example, to avoid irreparable harm or to allow proper consideration of an urgent application or appeal).

The court further applied this test to the facts and held that the judge had erred in exercising his discretion because the principal matters the newspaper wished to publish were matters of serious public interest and Cream's prospects of success were not sufficiently likely to justify an interim prior restraint. The interlocutory injunction was discharged so far as it related to information already supplied to the newspaper; the remainder of the injunction was left in place by agreement of the parties.

The claimants (Cream group) sought an interim injunction restraining the defendants (a former financial controller, Ms Banerjee, and a regional newspaper, the Echo) from publishing confidential information that Ms Banerjee had supplied to the newspaper following her dismissal. Lloyd J granted an interlocutory injunction under the Human Rights Act 1998, section 12(3), to preserve confidentiality until trial. The defendants appealed to the Court of Appeal which dismissed the appeal (Simon Brown, Sedley and Arden LJJ), Sedley LJ dissenting. The defendants appealed to the House of Lords.

Nature of relief sought: an interlocutory injunction to restrain publication before trial of information said to be confidential.

Issues framed: (i) the proper meaning of 'likely' in section 12(3) HRA 1998 as a statutory threshold for prior restraint affecting freedom of expression; (ii) whether, applying that meaning to the facts, the interlocutory injunction should have been granted given the public interest in the proposed publication and other circumstances.

The House reviewed the legal background (notably the American Cyanamid approach) and concluded that Parliament intended a higher threshold than the customary 'real prospect of success' but did not intend a single inflexible test of 'more likely than not' in every case. The appropriate approach is that the applicant must usually show that it is probably ('more likely than not') that he will succeed at trial, but the court may accept a lower degree of likelihood where particular circumstances make that necessary (for example, to prevent irreversible harm or to secure a short-lived injunction pending consideration of the application).

Applying that approach, the House concluded the judge had misdirected himself in exercising his discretion: the proposed publication disclosed matters of serious public interest and Cream's prospects of success were not sufficiently likely to justify prior restraint of the information already supplied to the newspaper. The House allowed the appeal and discharged the injunction insofar as it related to material already provided to the Echo.

Appeal allowed. The House held that 'likely' in section 12(3) requires a degree of prospect of success that will, in general, be 'more likely than not', but the threshold is flexible and may be lower where circumstances (such as risk of irreversible harm or need for short-lived protection pending consideration) justify it. Applying this approach, the judge had erred in exercising his discretion because the information already supplied to the newspaper was a matter of serious public interest and Cream's prospects of success were not sufficiently likely to justify prior restraint; the interlocutory injunction was discharged insofar as it related to that information.

Interlocutory injunction granted by Lloyd J on 5 July 2002. Appeal to the Court of Appeal dismissed ([2003] EWCA Civ 103; reported [2003] Ch 650), Sedley LJ dissenting. Further appeal to the House of Lords allowed ([2004] UKHL 44).