“No such relief [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.”
“…. Mr Tugendhat’s submission is that the phrase ‘likely to establish’ does not mean ‘more probable than not’, because that interpretation in certain circumstances could bring it into conflict with the European Convention on Human Rights itself by giving priority to article 10, the right to freedom of expression, over article 8, the right to respect for private and family life. Such an automatic priority, it is said, would not be in conformity with the Convention. Since section 3(1) of the Human Rights Act requires the court to construe legislation in a way which is compatible with the Convention rights ‘so far as it is possible to do so’, section 12(3) itself must be read in a way which avoids giving precedence to article 10 rights. It is argued on behalf of the claimants that the words ‘likely to establish’ in that subsection should be taken to mean ‘not fanciful’ or ‘on the cards’.”
“134 … A newspaper, say, intends to publish an article about an individual who learns of it and fears, on tenable grounds, that it will put his life in danger. The newspaper, also on tenable grounds, considers his fear unrealistic. First of all, it seems to me inescapable that s. 12(4) makes the right to life, which is protected by article 2 and implicitly recognised by article 10(2), as relevant as the right of free expression to the court’s decision; and in doing so it also makes article 17 (which prohibits the abuse of rights) relevant. But this in turn has an impact on s. 12(3) which, though it does not replace the received test (or tests) for prior restraint, qualifies them by requiring a probability of success at trial. The gauging of this probability, by virtue of s. 12(4), will have to take into account the full range of relevant Convention rights. 135 How is the court to do this when the evidence – viz that there is and that there is not an appreciable risk to life - is no more than evenly balanced? A bland application of s. 12(3) could deny the claimant the court's temporary protection, even if the potential harm to him, should the risk eventuate, was of the gravest kind and that to the newspaper and the public, should publication be restrained, minimal; and a similarly bland application of s. 12(4), simply prioritising the freedom to publish over other Convention rights (save possibly freedom of religion: see s.13), might give the newspaper the edge even if the claimant's evidence were strong. I agree with Mr Tugendhat that this cannot have been Parliament's design. This is not only, as he submits, because of the inherent logic of the provision but because of the court's own obligation under s. 3 of the Act to construe all legislation so far as possible compatibly with the Convention rights, an obligation which must include the interpretation of the Human Rights Act itself. The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not – and could not consistently with the Convention itself – give article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court.”
“17. Counsel for the defendants submitted that the requirement of likelihood imposed a higher standard than that formulated in American Cyanamid -v- Ethicon Ltd[1975] AC 396 . I did not understand this to be disputed by counsel for Imutran. He submitted that whatever the standard was his case satisfied it. Theoretically and as a matter of language likelihood is slightly higher in the scale of probability than a real prospect of success. But the difference between the two is so small that I cannot believe that there will be many (if any) cases which would have succeeded under the American Cyanamid test but will now fail because of the terms of section 12(3). Accordingly I propose to apply the test of likelihood without any further consideration of how much more probable that now has to be. See Douglas -v- Hello! Limited …”
“that Imutran is likely to establish at the trial of the action that publication of its confidential documents should not be allowed.”
“19 Mr Tugendhat for the claimant submitted that section 12(3) should be applied as if the test were not discernibly different from the familiar interlocutory test whether the case has a real prospect of success. He referred me to the later judgment of Sir Andrew Morritt V-C in Imutran … I am not sure that this [paragraph 17 of the Vice-Chancellor’s judgment in Imutran] fully supports Mr Tugendhat’s submission. In any event, I have some difficulty in seeing how the approach required by section 12(3) can be other than that the claimant must show that it is more probable than not that he will succeed in obtaining an injunction at trial. I cannot envisage, as a matter of ordinary English, an injunction which is likely to be granted but more probably than not will be refused. If Parliament had intended the relevant test to be whether the claimant had a real prospect of success, it would have used that familiar legal phrase. I consider that it intended to impose the discernibly more rigorous requirement which it did in this particular context of freedom of expression.”
“These guidelines start with the normal guidelines applicable to the grant or refusal of an interim injunction. They refer to and assist in the application of section 12. They discuss the tension between the right to freedom of expression and the importance of the free press and the right to privacy. They refer, obviously enough having regard to the identity of the claimant in that case and the nature of the allegations, to the relevance of a public position of a claimant, or of the claimant having courted public attention or put himself forward to the public with a particular image. They refer to and discuss the Press Complaints Commission Code of Practice. Both counsel made detailed submissions to me by reference to these guidelines, which have assisted me in my task.”
“I must now apply the relevant legal principles to the facts. In some respects the facts alleged by [Miss Banerjee] are denied by [Cream], in other respects they are not. It seems to me that I am entitled to consider the detail of what is said and not said in the evidence, but clearly I cannot form a view as to who is likely to be found at any trial to be telling the truth where the evidence is contested. In order to establish its entitlement to an injunction Cream has first to show that it is likely, in the terms of section 12(3) of the Human Right Act, to be able to establish at trial that a permanent injunction should be granted to restrain publication. Since confidentiality is admitted, … the question is whether Cream is likely to be able to succeed at trial despite the defendants’ defences based on public interest and the Public Interest Disclosure Act.”
“Having regard to the interpretation of the word ‘likely’ in the Human Rights Act section 12(3), approved in A -v- B, it seems to me that Cream has established the necessary likelihood of a permanent injunction. I do not say it is more likely than not, but there is certainly a real prospect of success.”
“A person shall not be employed to lift, carry or move any load so heavy as to be likely to cause injury to him.”
“The section speaks of an act or omission that is ‘likely’ to cause unnecessary suffering or injury to health. This word is imprecise. It is capable of covering a whole range of possibilities from ‘it’s on the cards’ to ‘it’s more probable than not’, but having regard to the ordinary parent’s lack of skill in diagnosis and to the very serious consequences which may result from failure to provide a child with timely medical attention, it should in my view be understood as excluding only what would fairly be described as highly unlikely.”
“Of course the words of a statute must be construed in their context but Lord Diplock’s interpretation of ‘likely’ seems very strained. If it only excludes what is ‘highly unlikely’ it includes what is merely ‘unlikely’; ie, the result is ‘likely’ to occur although it is unlikely (but not highly unlikely) to do so. With respect, that does not seem to be a possible meaning: ‘likely’ cannot include ‘unlikely’. On the contrary, a synonym for ‘likely’ is ‘not unlikely’.”
“70 The application has to be made by ‘a person … likely to be a party to subsequent proceedings’ against ‘a person … likely to be a party to the proceedings’ … 71 Of course, in one sense it might be said that a person is hardly likely to be party to subsequent proceedings whether as a claimant or otherwise unless some form of proceedings is itself likely to be issued. Two questions, however, arise. One is whether the statute requires that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued. The other is whether ‘likely’ means ‘more probably than not’ or ‘may well’. As to the first question, in my judgment the amended statute means no more than that the persons concerned are likely to be parties in proceedings if those proceedings are issued. … 72 As to the second question, it is not uncommon for ‘likely’ to mean something less than probable in its strict sense. It seems to me that if I am wrong about the first question, then it is plain that ‘likely’ must be given its more extended and open meaning (see Lord Denning MR in Gunning’s case [Gunning -v- United Liverpool Hospitals’ Board of Governors[1973] 1 WLR 586 ]) because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying that ‘likely’ here means no more than ‘may well’. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested.” 72 As to the second question, it is not uncommon for ‘likely’ to mean something less than probable in its strict sense. It seems to me that if I am wrong about the first question, then it is plain that ‘likely’ must be given its more extended and open meaning (see Lord Denning MR in Gunning’s case [Gunning -v- United Liverpool Hospitals’ Board of Governors[1973] 1 WLR 586 ]) because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying that ‘likely’ here means no more than ‘may well’. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested.”
“I bear carefully in mind, as I must, the great importance of clarity in the language of injunctions which may lead to committal proceedings. The words ‘likely to lead to’ were drafted by counsel in the injunction proceedings, amongst them [counsel for the newspaper groups] … It was not then suggested to be ambiguous or uncertain. The words are now challenged as unclear or imprecise. I have been directed to the dictionary meaning. Collins Dictionary of the English Language gives a number of definitions of the word ‘likely’. They include: tending or inclined, apt; probable; having good possibilities of success. I have also had my attention drawn to reported decisions on the use of the words ‘likely’ and ‘probable’. Those decisions and others point to the fact that the word ‘likely’ may be used in different contexts in different ways. There will undoubtedly be cases in which the use of the word ‘likely’ will be properly equated with ‘probable’. In other cases it has been used to mean something which could or might well happen. Words have to be seen in the context of the sentence and in the context of the situation in which they are used. In my judgment a detailed consideration of the decisions cited to me does not help me to come to a conclusion in the present case. The purpose of the injunctions is to protect the lives and personal safety of these boys. [In my earlier judgment] I used the phrase ‘real possibility that their lives would be at risk’. The use of the word ‘likely’ in the order is not to be equated with statistical probability that it will lead to the identification of the boys or their whereabouts but to the real risk, the real danger, the real chance that it may lead to that dangerous situation.”
“As I read s8 the court must be satisfied on the evidence put before it that at least one of the purposes in s8(3) is likely to be achieved if it is to make an administration order. That does not mean that it is merely possible that such purpose will be achieved; the evidence must go further than that to enable the court to hold that the purpose in question will more probably than not be achieved.”
“What would a losing client think if, having lost, his lawyer then sought to justify previous advice that he was likely to win by saying he had meant only that there was a real prospect of winning?”
“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words that there is a serious question to be tried.”
“(a) Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph (2) of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. (b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the ‘interests of national security’ or for ‘maintaining the authority of the judiciary’, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.”
“For the avoidance of doubt, … the Court would only add to the foregoing thatArticle 10 of the Convention does not in terms prohibit the imposition of prior restraint on publication, as such. This is evidenced not only by the words ‘conditions’, ‘restrictions’, ‘preventing’ and ‘prevention’ which appear in that provision, but also by the Sunday Times judgment of26 April 1979 and its Markt Intern Verlag GmbH and Klaus Beerman judgment of20 November 1988 . On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
“There cannot as yet be said to be a ‘bright-line’ rule against judicial prior restraint in ECHR law. However, it is clear that prior restraints are viewed as pernicious and that, to be upheld as justifiable, their use will have to be viewed as appropriate, proportionate and absolutely necessary.”
“Where the future has to be predicted, … a high test requiring proof on the balance of probability will be both undesirable and unnecessary …”
“On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 1165 of 1998 … in these terms: ‘11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.’”
“In many situations the balance [between conflicting rights] may not point clearly in either direction [in which event] interim relief should be refused.”
“Here, if the story is published, but should not have been, Cream is likely to suffer an irreparable loss of an unquantifiable nature. By contrast, if the publication is restrained it will delay the second defendant’s story but subject to the time taken to get to trial it would not necessarily preclude its publication altogether. It seems to me that for these reasons the classic balance of convenience test favours the granting of an interim injunction, possibly with directions for a speedy trial.”
“Can the grant of an injunction, even for what may be a few months until a speedy trial, be justified as an interference with freedom of expression and in particular with that on the part of the press?”
“As to the second question, it is not uncommon for ‘likely’ to mean something less than probable in its strict sense. It seem to me that if I am wrong about the first question, then it is plain that ‘likely’ must be given its more extended and open meaning (see Lord Denning MR in Dunning’s case), because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying that ‘likely’ here means no more than ‘may well’. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable, because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested.”
“… freedom of speech is the lifeblood of a democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice in this country.”
“In everyday usage one meaning of the word ‘likely’, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using ‘likely’ in a different sense. I am inquiring whether there is a real risk of rain, a risk that ought not to be ignored.”
‘17. Counsel for the defendants submitted that the requirement of likelihood imposed a higher standard than that formulated in AmericanCyanamid. I did not understand this to be disputed by counsel for Imutran. He submitted that whatever the standard was his case satisfied it. Theoretically and as a matter of language likelihood is slightly higher in the scale of probability than a real prospect of success. But the difference between the two is so small that I cannot believe that there will be many (if any) cases which would have succeeded under the AmericanCyanamid test but will now fail because of the terms of s.12(3). Accordingly I propose to apply the test of likelihood without any further consideration of how much more probable that now has to be’
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
“The expression ‘if the court is satisfied’… envisages that the court must be judicially satisfied on proper material. There is also inherent in the expression an indication of the need for the subject matter to be affirmatively proved. If the court is left in a state of indecision the matter has not been established to the level, or standard, needed for the court to be ‘satisfied’.”
“I prefer the approach of Hoffmann J. I would not improve on his, to my mind, compelling reasoning if I were to attempt to paraphrase it. I think, however, that in deference to the views expressed by Peter Gibson and Harman JJ and the able argument that has been addressed to me by Mr Higham, counsel on behalf of BCCI, I should add a few words. The case of BCCI in essence is that the word ‘likely’ when ordinarily used means ‘probable’ or ‘more likely than not’. That is the sense in which the word is used in para (a) of s 8(1): ‘is or is likely to become unable to pay its debts’ and it must be given the same reading in para (b): ‘would be likely to achieve one or more of the purposes mentioned below’. The fallacy in that argument lies in the assumption that ‘likely’ has a clearly definable, ordinary meaning. Like many words in everyday use, it carries with it, as it were, a penumbra of different shades of meaning: ‘… the wide spectrum that it covers makes it the more necessary, if precise conclusions are to be founded upon its use, to place it in a setting.’ (See per Lord Wilberforce in Gartside -v- IRC[1968] 1 All ER 121 at 134,[1968] AC 553 at 617 where, as Lord Wilberforce pointed out, the word ‘interest’ was used in different senses in different parts of the estate duty legislation.) The word ‘likely’ is most commonly used to indicate a degree of probability above 0.5 on the scale of 0 to 1, though frequently as Hoffmann J points out, where it is necessary to indicate the degree of probability attached by the speaker, it will be qualified by the addition of ‘quite’ or ‘very’. However, it is not always used in a sense that indicates a belief on behalf of the speaker that a state of affairs is probably true or would probably come about. One of the senses given to the word in the Oxford English Dictionary is ‘having an appearance of truth’, the sense in which an account of an event or an explanation may be said to be likely to be true. Even when used to describe a possible future event, it is not always used to convey the speaker’s belief that it will probably happen. So, for example, a sanitary inspector might refer to a foul and ill-ventilated drain as a ‘likely source of infection’ without wishing to commit himself to the view that if uncorrected infection will probably result; he may have in mind only that the state of the drain is such that if its condition is uncorrected there will be a real risk of infection. Paragraph (a) of s 8(1) sets out a condition that must be met before the court can enter into an inquiry as to whether an administration order would serve any useful purpose. The court must be satisfied that the company is or is likely to become unable to pay its debts. Clearly in this context, the test prescribed must be whether a company currently able to pay its debts as they fall due will probably be unable to pay them in the future. It would be unjust to a company’s creditors to impose on them the regime of an administration order so as to improve and, perhaps, expand the company’s business if the probability is that the company will be able to pay its debts as they fall due. Paragraph (b), although in form it sets out a further condition that must be met before the court comes to exercise its discretion, in substance has a different function. The difference in the function (as Hoffmann J observes) is reflected in the use of the word ‘considers’. If the test in para (a) is satisfied, the court has to consider whether an administration order would be likely to achieve one of the stated purposes and if it would whether, in the exercise of its discretion, it should appoint an administrator. In that context to give the word ‘likely’ the force of ‘more likely than not’ would, in my judgment, stultify the Act and achieve no useful purpose. The court has to weigh the prospect that one or more of the stated purposes would be achieved against the interests of creditors and others who might be adversely affected by it. The question must always be, if there is a real prospect that one or more of the stated purposes would be achieved, is that prospect sufficiently likely in the light of all the other circumstances of the case to justify making the order?”