Bargain Busting Limited v Shenzhen SKE Technology Co Ltd

Under section 12(3) of the Human Rights Act 1998, the ordinary threshold for an interim order restraining publication is that the applicant is more likely than not to establish at trial that publication should be prohibited. A lower threshold may apply where refusal would have particularly grave adverse consequences, or where a short-lived order is needed to enable proper consideration of longer-term relief. The merits threshold is not modified by balancing freedom of expression against countervailing rights. The court must assess the merits on proportionate evidence while ensuring that the application does not become a mini-trial.

Rival suppliers of vaping products disputed the validity and infringement of three United Kingdom trade marks. After the appellant sent letters before claim to distributors and retailers, the respondent sought an interim injunction restraining further threats of trade mark infringement proceedings. Miles J granted the injunction on the basis that the respondent’s prospects at trial were sufficiently favourable: [2025] EWHC 1239 (Ch). The appellant appealed, contending that section 12(3) required the applicant to show that success at trial was more likely than not. The central issue was whether the circumstances justified departing from that general rule.

The appeal was allowed and the interim injunction was set aside.

1. Section 12(3) of the Human Rights Act 1998 establishes a general rule that an interim order restraining publication should not be granted unless the applicant is more likely than not to establish at trial that publication should not be allowed. The flexibility recognised in Cream Holdings Ltd v Bannerjee [2004] UKHL 44 and applied in the trade mark context in Boehringer Ingelheim Ltd v Vetplus Ltd [2007] EWCA Civ 583 applies equally to alleged unjustified threats.
2. A lower threshold may suffice where the adverse consequences of refusing relief are particularly grave, or where a short-lived injunction is needed to enable the court properly to consider longer-term interim relief. The categories are not necessarily exhaustive.
3. The need to balance Article 10 rights against countervailing Convention or other rights is separate from the statutory merits threshold. It does not modify that threshold. The principle in American Cyanamid Co v Ethicon Ltd [1975] AC 396 that interim applications should not become mini-trials remains relevant to case management, but it does not remove the obligation to assess the merits.
4. The judge had not found that SKE was more likely than not to succeed. Nor had he found particularly grave consequences if relief were refused. There had been no established loss of sales from the earlier threats, no strong likelihood of further threats or lost sales, and SKE had not sought relief with particular urgency. The section 12(3) exception was therefore not engaged.
5. Since the general threshold was not met and no applicable exception had been established, the injunction was wrongly granted. It was unnecessary to determine the second ground of appeal.

• Court of Appeal (Civil Division): Allowed the appeal on 8 May 2026 and set aside the interim injunction.
• High Court of Justice, Business and Property Courts, Intellectual Property List (ChD): Miles J granted an interim injunction restraining further threats on 27 May 2025 for the reasons given in [2025] EWHC 1239 (Ch).