Francotyp-Postalia Ltd v The Mailing Room Ltd & Ors

Section 12(3) of the Human Rights Act 1998 imposes a high threshold before publication is restrained pending trial. In malicious falsehood proceedings, the court applies the defamation rule that an interim injunction is unavailable where the defendant proposes to justify the publication, unless that defence is plainly bound to fail. An arguable evidential basis for justification is sufficient at this stage. Relief should also be refused where the proposed statement is arguably true or its wording is too uncertain to frame precisely. Existing undertakings may adequately protect the claimant, with further disclosure pursued through the ordinary specific-disclosure process where appropriate.

The claimant brought proceedings for malicious falsehood after former franchisees circulated material to its customers concerning franking-machine licences, contracts and payment arrangements. The High Court granted a wide interim injunction: [2014] EWHC 4521 (QB). On appeal, the defendants accepted a narrower order, while the claimant sought additional restraints concerning alleged scams, service disruption, existing contracts and similar statements, together with wider disclosure of recipients. The central issues were whether the additional restraints satisfied the pre-trial threshold for publication injunctions and whether the requested disclosure was appropriate as ancillary relief.

1. Disposition. The appeal was allowed to the extent indicated. The defendants’ narrower proposed order adequately protected the claimant pending trial. The claimant’s additional restraints and wider disclosure request were refused.
2. Applicable threshold. The proposed injunction would affect the defendants’ freedom of expression under Article 10 of the European Convention on Human Rights. Section 12(3) of the Human Rights Act 1998 therefore required the claimant to show that it was likely to establish that publication should not be allowed. The court applied the principle stated in Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462, [2005] QB 972, that an interim restraint should not be granted where the defendant proposes to justify publication unless the justification defence is plainly bound to fail. It was accepted, following Bestobell Paints Ltd v Bigg [1975] F.S.R. 421, that the principle applies to malicious falsehood.
3. Additional statements. The defendants’ evidence made it arguable that the claimant’s employees had posed as the customers’ franking-machine supplier. That arguability was sufficient at the interim stage, so no further restraint was justified in relation to the allegation of a scam. The accepted terms also removed any serious threat of service disruption arising from the defendants’ proposed communications. A further restraint concerning the effect of new agreements on existing contracts was refused because the statement was arguably not incorrect and the proposed wording remained uncertain. The allegation concerning companies using “FP” stood or fell with the scam allegation.
4. Disclosure. The court refused an order requiring disclosure of persons sent other written material of similar effect. Standard disclosure had already taken place. If relevant documents existed, the claimant could seek specific disclosure in the action; if irrelevant, no order was appropriate.

1. Court of Appeal (Civil Division). In [2015] EWCA Civ 1167, the appeal was allowed to the extent indicated, the wider injunction was not maintained, and the additional disclosure request was refused.
2. High Court of Justice, Queen’s Bench Division. In [2014] EWHC 4521 (QB), His Honour Judge Seymour QC granted a wide interim injunction in the malicious falsehood proceedings.