Judgment was handed down by the Court of Appeal on 5 November in a case brought by a friend of Cherie Blair, who sought an emergency injunction to prevent the Mail on Sunday from publishing allegedly libellous allegations about her. Ms Green’s counsel argued that section 12 of the Human Rights Act 1998 had superseded the rule against prior restraint of libel by injunction in Bonnard v Perryman. This was rejected both by the High Court judge and subsequently by the Court of Appeal.
The rule for well over a century concerning prior restraint in libel has been that no injunction will be granted before trial unless it is clear when the application is made that there is no defence available to the publisher that will succeed at trial. That very high hurdle was appropriate in a democracy committed to freedom of speech long before the introduction of Article 10 of the European Convention on Human Rights into our legislation.
There had been speculation that section 12 of the Human Rights Act 1998, which sets out the principles on which prior restraint applications should be judged, had superseded the rule in Bonnard v Perryman, which was therefore no longer good law. It was argued on behalf of Ms Green that all she had to do was establish that it was “more likely than not” that she would succeed at trial in establishing that the publication should not be permitted.
Lord Justice Brooke delivered the Court of Appeal’s judgment and held that before trial no-one can prove a violation of a right to reputation, and that it is the function of the jury to decide whether vindication is appropriate. The judge rejected the argument that the rule in Bonnard v Perryman had been undermined by the Human Rights Act, contrasted confidence / privacy injunctions where such relief was more appropriate, and pointed to the damage to the right of freedom of expression which would be caused if the rule in Bonnard v Perryman were relaxed concerning libel injunctions.
Emphatically affirming the no prior restraint in libel rule, Lord Justice Brooke observed that: “If a claimant was able to stop a defendant from exercising his ECHR article 10 right merely by arguing on paper-based evidence that it was more likely than not that the defendant could not show what it wished to say about the claimant was true, it would seriously weaken the effect of Article 10.”
The freedom of the press guaranteed by Article 10 of the ECHR was rightly defended in this case by the Court of Appeal. The practical difficulty of this legal rule however for claimants is that whereas every national newspaper has the resources to defend a defamatory story if challenged via legal proceedings, only a tiny minority of claimants have the financial means necessary to contemplate seeking vindication at trial. This renders the safeguard of a constitutional right of vindication before a jury of your peers somewhat illusory for the vast majority of the population, including many in the public eye.