03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) "19. There is, as all members of the Supreme Court conclude, a clear error of law in the Court of Appeal's reasoning in relation to section 12. For reasons given in para 20 below, it consists in the self-direction that section 12 'enhances the weight which article 10 rights carry in the balancing exercise' (para 40). The Court of Appeal's further self-direction, that section 12 'raises the hurdle which the claimant must overcome in order to obtain an interim injunction' is unexceptionable, in so far as section 12 replaces the general American Cyanamid test, focused on the balance of convenience, with a test of whether the appellant is 'likely to establish that publication should not be allowed' at trial. The position was stated more particularly by Lord Nichols in Cream Holdings v Banerjee [2004] UKHL 44, para 22: […] 20. The Court of Appeal's initial self-direction is however contrary to considerable authority, including authority at the highest level, which establishes that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the Court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J, describing this as a "very well established" methodology. The exercise of balancing article 8 and article 10 rights has been described as "analogous to the exercise of a discretion": AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, para 8). While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention. The Court of Appeal's error in its initial self-direction is, however, one of potential significance, since it necessarily affects the balance. By itself it would require the Supreme Court to re-exercise the discretion which the Court of Appeal exercised in setting aside the injunction which it had previously granted. But there are further aspects of the Court of Appeal's treatment of the issues which together lead to the same conclusion." 55. Paragraph 19 deals with the point that s.12 can be said to raise the hurdle which the claimant must overcome to obtain an interim injunction to something higher than the American Cyanamid test and approves the Court of Appeal's way of putting that. Ultimately paragraph 20 is a summary of the right approach and it is the approach I propose to follow. 56. Balancing the privacy rights of celebrities and freedom of speech rights presents a particular set of problems which are some way from the facts of the case before me. In my judgment what PJS does show is that CAPS's submission that one can simply characterise an interim injunction claim which relies on other causes of action apart from defamation as merely an attempt to circumvent a clear Bonnard v. Perryman principle and stop there, cannot be a complete statement of the position. The correct approach must be based on s.12 and Cream Holdings. That involves identifying the nature of the rights relied on by the claimant in support of its claim for an interim injunction and carrying out the required balancing exercise. It does not add much to the analysis to seek to answer the question whether the claim is an attempt to circumvent a rule in defamation. I do not mean to suggest that I doubt that the outcome reached in cases which did not involve privacy like Service Corporation, Tillery Valley and Viagogo. The balance of rights in this case 57. The claimants have property and economic rights. They are protected not by Art.8, but the property rights are protected expressly by Art 1 of Protocol 1 of the convention. It is somewhat ironic that the performance rights in this case can be referred to as "non-property" rights as distinct from the www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 11/13