Goncalo Ferreira-Malosso v Justina Nowakowska

Interim injunctions restraining allegedly defamatory publication are governed by the rule in Bonnard v Perryman, not the ordinary American Cyanamid principles. The claimant must show that the claim is bound to succeed. The threshold is higher than that in s.12(3) of the Human Rights Act 1998.

A claimant cannot avoid that rule by adding harassment to a defamation claim where the main purpose, or nub, of the proceedings is protection of reputation. Where harassment is genuinely the principal claim and reputation is not the nub, the more-likely-than-not standard may apply. A good arguable case is insufficient in either event.

The claimant obtained a without notice interim injunction restraining the defendant from disseminating allegedly defamatory statements and requiring disclosure of recipients. The order was granted before a defamation claim was issued, on the basis that there was a serious issue to be tried and that the balance of convenience favoured relief.

At the return hearing, the claimant sought to maintain the injunction and also sought to pursue harassment. The defendant did not appear. The central issues were whether the correct threshold had been applied, whether the claim was principally concerned with reputation, and whether a proposed consent order could maintain the relief.

1. The interim injunction was set aside. The court had been misinformed at the without notice hearing as to the applicable legal test. The American Cyanamid principles do not apply to an interim injunction restraining defamatory publication.
2. The governing rule is the rule in Bonnard v Perryman, derived from [1891] 2 Ch 269 and applied in [2005] QB 972. Interim relief will not be granted unless the claimant can demonstrate that the claim is bound to succeed. The threshold is exceptionally high because the order restrains freedom of expression before trial.
3. The conditions ordinarily required include that the statement is unarguably defamatory, there are no grounds for concluding that it may be true, no defence might succeed, and there is evidence of an intention to repeat or publish it. The procedural safeguards in Human Rights Act 1998, s.12(2), also apply where relief is sought without notice.
4. A claimant cannot avoid the defamation rule by pleading harassment in addition to defamation. The court must stand back and identify the nub and purpose of the application. If the main purpose is protection of reputation, the defamation rule applies. If harassment is genuinely the principal claim and reputation is not the nub, the more-likely-than-not standard may apply. A good arguable case remains insufficient.
5. The evidence showed no more than an arguable case and did not come close to establishing that the claim was bound to succeed. The proposed consent order was not approved because it included a vague prohibition on conduct amounting to harassment and did not address the setting aside of the interim order. The defendant was given seven days to consider whether to seek settlement on amended terms.