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.
In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights.”” This is from judgement
Subsequently, in Douglas & Ors v Hello! Ltd & Ors ( EWCA Civ 595), the Court of Appeal noted, “a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998.”