Not lowering the bar for libel injunctions


Martha Greene v Associated Newspapers Ltd; CA (Lords Justice Brooke, May, Dyson); 5 November, [2004] EWCA Civ 1462 on appeal from Mr Justice Fulford, [2004] EWHC 2322 (QB)



What is good for the confidence goose is not necessarily so for the libel gander. The claimant, Martha Greene, argued this month before the Court of Appeal that the bar to obtaining pre-trial injunctions in libel cases should be lowered to the same level as the bar in confidence cases.



She relied on the recent decision of the House of Lords in Cream Holdings Ltd and others v Banerjee and another (see [2004] Gazette, 4 November, 28), which ruled that to obtain injunctive relief before trial, the confidence claimant had to show that he was 'more likely than not' to win at trial.



Albeit a harsher test for confidence claimants who had previously only 'convincingly to establish a real prospect at trial', it was still less harsh than for the libel claimant. Pre-trial libel injunctions are governed by the rule in Bonnard v Perryman after the late 19th century case of that name ([1891] 2 Ch 269). The rule provides that an interim court will not prejudge the decision of a trial jury by granting an interim injunction unless the defendant has an arguable defence. This rule against prior restraint, at first justified because a court should not prejudge the decision of the jury, is now equally justified by the importance of free speech. It is valued by the media as a protection of their right to 'publish and be damned'.



While Mr Justice Fulford found himself bound by the higher courts rule in Bonnard v Perryman, he recognised the importance of this question of law and granted an interim injunction pending an expedited appeal. The matter came before the Appeal Court's Vice-President of the Civil Division, Lord Justice Brooke, and Lords Justice May and Dyson on 21 October, with the judgment handed down on 5 November.



The case arose out of the publication of an allegedly defamatory article in the Mail On Sunday published in October 2004, the further publication of which Martha Greene, a friend of the prime minister's wife Cherie Blair, sought by way of interim injunction to prevent until trial. The article referred to e-mails said by the newspaper to have passed between the claimant and Peter Foster. The claimant's case was that no such e-mails existed, and that their alleged timing - when Foster was being deported from the UK - meant that they could not be genuine. As set out in the judgment, 'Miss Greene maintained, against the background of Mr Foster's convictions and deportation, that any article based on "the e-mail" [said by the newspaper to have been sent by Miss Greene to Mr Foster] would be highly defamatory of her, particularly because of the suggestions that she was continuing to advise Mr Foster on business ventures, and that she was advising him on how to avoid the Advertising Standards Authority's Code of Practice and tax obligations'.


When contacted by the claimant's solicitors, the newspaper maintained that the e-mails were genuine and that it would justify the sting of the allegations if any proceedings were brought.


Section12(3) of the Human Rights Act provides that 'no such relief [which might affect the convention right of freedom of expression]is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed'. The claimant sought to argue that her right to her reputation and the newspaper's right to freedom of expression were at odds and that in reliance on section 12(3) she could obtain interim injunctive relief by showing that she was 'likely' to establish at trial that publication should not be allowed. Any evaluation of 'likely' should adopt the same test as that only two days before clarified in the House of Lords decision in Cream Holdings. By showing that she had a greater than 50% chance of succeeding at trial, she should be entitled to an interim injunction. Furthermore, or in the alternative, she would show that the rigid rule in Bonnard v Perryman accorded inappropriate weight to freedom of expression and was therefore not ECHR compliant.



Lowering the bar over which a libel claimant must jump in this way would be a considerable change to the existing law and a matter of significant concern to media defendants. The opening words of the leading judgment of Lord Justice Brooke set the tone not only of the whole judgment, but of the vital importance given to freedom of expression by the courts: 'Blackstone wrote in 1769 that the liberty of the press is essential in a free state, and this liberty consists in laying no previous restraints on publication. "Every freeman", he said, "has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press"... It is this freedom which is under challenge in this appeal.'



In light of this opening, it is perhaps not surprising to learn that the appeal court did not accept the claimant's propositions. Referring to the decision in Cream Holdings, the court noted that the Lords had referred to defamation cases and the rule in Bonnard v Perryman, but that in not addressing it in detail it was clear that they 'considered that this rule was unaffected by their decision in that case'. Furthermore, on their reading, the Lords in Cream Holdings 'took it for granted that the rule in Bonnard v Perryman was still good law notwithstanding the enactment of section 12 of the Human rights Act'. Third, the court did not accept that the rule forced the courts to act incompatibly with a convention right, in this case the claimant's article 8 right to reputation. Following Campbell v MGN [2004] UKHL 22 and a House of Lords ruling in the Family Court case in reS [2004] UKHL 47 - only handed down after argument in Greene had been made - the appeal court accepted that neither article 8 nor article 10 took precedence as such where competing rights were at odds.



But, quoting Lord Steyn in re S, the court had to give 'intense focus [to] the comparative importance of the specific rights being claimed in the individual case'. In undertaking this exercise, 'the relevant rights of the claimant in the present case cannot be accorded great weight (before the trial of this action takes place) when compared with the importance to be attached to the freedom of the press to report matters of public interest'.


A confidence genie, once out of the bottle, can do irreparable harm, and can sometimes be guarded against by way of an interim injunction. But a claimant's right to reputation cannot be properly evaluated until trial, because it is only on cross-examination before a jury that the reputation itself and any damage to it can be established.


In an age when the media seems forever to be warning that their rights to freedom of expression are being eroded, this is yet another victory for press freedom. Libel claimants will just have to keep trying to get over that high injunction bar.