Jagwani v Alles

For an interim injunction affecting freedom of expression, the applicant must satisfy section 12 of the Human Rights Act 1998. The relevant threshold is whether the applicant is likely to establish at trial that publication should not be allowed, rather than whether there is merely a serious issue to be tried. Defamatory publication cannot ordinarily be restrained before trial unless any defence is bound to fail. Publication-based harassment requires conduct of sufficient seriousness to sustain criminal liability and, in the case of press or journalistic material, exceptional circumstances justifying restriction of expression. Distress and serious personal impact are insufficient by themselves. The application was therefore refused.

The claimant, a school teacher, sought an interim injunction against the defendant, a journalist and campaigner. He alleged that she had published and republished defamatory accounts of his marriage and divorce, made related social-media comments, and encouraged protests or violence. He relied on defamation, harassment under the Protection from Harassment Act 1997, and the interference with freedom of expression engaged by article 10 of the ECHR.

The court considered whether the alleged publications could be restrained before trial, whether they amounted to harassment, and whether the statutory threshold for relief under section 12(3) of the Human Rights Act 1998 was met.

1. Application refused. The claimant did not establish that he was likely to show at trial that continued publication should not be allowed. The application for an interim injunction was refused.
2. For the defamatory publications, the rule in Bonnard v Perryman applied. An injunction could be granted only if the defendant’s proposed defences, including truth and honest opinion, had no prospect of success. The claimant’s evidence did not establish that those defences were bound to fail.
3. The applicable threshold under section 12(3) of the Human Rights Act 1998 was whether publication was likely to be prohibited at trial. The usual serious-issue-to-be-tried test in American Cyanamid v Ethicon was not the applicable test because the application engaged freedom of expression under article 10 of the ECHR.
4. Harassment under section 1 of the Protection from Harassment Act 1997 requires a course of conduct reaching the level of seriousness described in Majrowski v Guy’s and St Thomas’s NHS Trust. Severe distress does not itself establish harassment where the conduct remains below the criminal-liability threshold. Publication-based harassment also requires exceptional circumstances justifying sanctions and restriction of expression, as explained in Thomas v News Group Newspapers Ltd.
5. The defendant’s direct contact with the claimant was limited. The remaining allegations concerned publication and republication of material which the claimant regarded as false and defamatory. Although the publications had caused him considerable distress and affected his health, the conduct did not approach the requisite seriousness. A social-media post quoting The Handmaid’s Tale was rhetorical and, viewed in context, did not amount to a serious incitement to violence.
6. The court also had regard to the need for an intense focus and proportionality assessment when article 10 rights conflict with article 8 rights, as explained in Re S (F) (a child). That consideration did not alter the conclusion that the statutory threshold for interim relief was unmet.