Various Airfinance Leasing Companies & Ors v Saudi Arabian Airlines Corporation

On an application for an interim injunction affecting freedom of expression, the ordinary American Cyanamid approach is modified by section 12(3) of the Human Rights Act 1998. The applicant will generally need to show that publication is more likely than not to be restrained at trial. The court retains flexibility where a short-lived order is needed to preserve confidentiality until a properly argued hearing, particularly where disclosure could cause grave and irreversible harm. Commercial confidentiality and the public interest in maintaining confidential negotiations may justify such protection. A mandatory injunction sought ex parte requires particular caution and a high degree of assurance that it will withstand scrutiny. Delay is relevant but is only one factor in the overall assessment.

The defendant, Saudi Arabian Airlines Corporation, applied without the claimants’ attendance for an interim injunction restraining disclosure of confidential information concerning aircraft leases, financial information and without prejudice negotiations. The application also sought relief against International Airfinance Corporation, described as the claimants’ de facto controller and an intended third party.

The underlying proceedings concerned disputes arising from long-term leases of 50 Airbus aircraft. The defendant alleged that confidential information had been leaked to the media and that further information was at imminent risk of disclosure. The central issues were whether the evidence established a sufficient likelihood of unlawful publication, how section 12 of the Human Rights Act 1998 affected the usual interlocutory test, and whether negative and mandatory relief should be granted before the return date.

1. The court granted a limited negative interim injunction pending an early return date, but refused the proposed mandatory injunction requiring disclosure of journalists, recipients and details of any alleged disclosures. A further paragraph of the draft order was later refused, and the return date was fixed for 13 January 2021.

2. The ordinary interlocutory principles in American Cyanamid v Ethicon require a serious issue to be tried, inadequacy of damages and a balance of convenience favouring relief. Because the proposed order might affect freedom of expression, section 12(3) of the Human Rights Act 1998 required the court to be satisfied that publication was likely to be impermissible. Following Cream Holdings v Banerjee, “likely” ordinarily means more likely than not.

3. The section 12(3) standard is flexible. A lesser degree of likelihood may suffice for a short-lived injunction needed to preserve confidentiality until the court can hear and determine an application for longer-term relief, especially where the consequences of disclosure may be grave and irreversible. The evidence established more than an arguable case and, on the material available, it was more likely than not that the information was confidential and that publication should not be allowed. The court also treated the public interest in maintaining commercial confidentiality and effective without prejudice negotiations as relevant.

4. The evidence consisted substantially of inferences concerning the source of the leaks. Those inferences were sufficiently strong to justify temporary protection, without amounting to a pre-judgment of the substantive allegations. The risk of further disclosure, the sensitivity of the information and the refusal to give undertakings supported the negative injunction.

5. The court was reluctant to grant mandatory relief ex parte. The respondents had not had a proper opportunity to address the disclosure obligation, and a mandatory order required a particularly high degree of assurance that it would withstand scrutiny at the return hearing. Delay by the applicant was a factor against relief but did not outweigh the other considerations.