Category: Africa principle

Its principal purpose

Its principal purpose was to improve the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.” Remember this was tried and tested in the Double Glazing Glasgow case? Well, here we go again!

“Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order.

But in order to achieve the necessary flexibility, the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favorable to justify such an order being made in the particular circumstances of the case.

As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. Continue reading