A Rare Breed - Libel Injunctions

Recent cases show when you may get an interim injunction to restrain publication of defamatory material

Cases involving claimants successfully obtaining an interim injunction for libel are always of interest – they almost never happen. In September 2010, a solicitor who has been the subject of allegedly defamatory postings on a website called Solicitors From Hell bucked the trend and successfully obtained her injunction.

Interim libel injunctions are rare because of the rule in the old case of Bonnard v. Perryman (1891) 2 Ch 269: interim injunctions should not be granted in defamation cases where the defendants indicate an intention to prove the truth of what they publish or transmit, i.e. raise a defence of justification.

s.12(3) Human Rights Act 1998 also affects the approach of the court: it provides that no relief affecting the exercise of the Convention right to 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 Act also directs in s.12(4) that "the court must have particular regard to the importance of the Convention right to freedom of expression", and, where the proceedings relate to journalistic, literary or artistic material, to the extent to which "it is, or would be, in the public interest for the material to be published."

The Court of Appeal in Greene v. Associated Newspapers (2005) QB 972 ruled that s.12(3) did not undermine the force of the rule in Bonnard v. Perryman, and explained that the ban on prior restraint in defamation cases (unless it is clear that no defence will succeed at trial), was based on the following:

The importance of freedom of speech. The constitutional function of the jury (as fact-finders) should not be bypassed by a judge, unless he is satisfied that there is no case to go to the jury. The fact that (until there has been disclosure of documents and cross-examination at trial) a court cannot safely find that what the defendants propose to publish is not true. Damages including aggravated or exemplary damages are available where Defendants fail to prove the truth of what they chose to publish. In September 2010, however, solicitor Anna Mazzola won an interim injunction in the High Court on the grounds of libel. The defamatory material consisted of postings about Ms Mazzola on the Solicitors from Hell website (http://solicitorsfromhell.co.uk/). The Judge...