03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) than not to win. So, if a proper approach under section 12(3) to this case requires the balance to tip in favour of the claimant on the merits, then I should not grant an injunction. (37) However, it seems to me that in a case like this, it is not enough to stop there. Cream Holdings shows that the balance of rights and of harm, and so on, may well mean that an interim injunction is appropriate even if the court cannot say that the claimant will probably win. In my judgment, this is especially so where, as here, this is in no sense a weak case by the claimant. As I said, the merits are finely balanced. It is clear to me that the merits come well past satisfying the American Cyanamid level." 53. One thing is missing from para.37 is a reference to a previous decision of mine in Volkswagen v. Garcia [2013] EWHC 1832 (Ch). I must say I thought I had referred to it when I gave that Interflora judgment but clearly did not. Volkswagen was a case in which the right sought to be protected was the alleged confidentiality in a secret encryption algorithm used in anti-theft devices in millions of motor vehicles. The application was seeking to restrain the publication of the entire algorithm in an academic journal. It was not an overwhelming case of breach of confidence. The academics had solid arguments that no breach had occurred. They said they had reverse engineered the algorithm and they maintained that the sort of publication they sought to make was what one can call "high value speech" published in an academic journal. But at the interim stage the key thing in the balance was that the attempt to restrain publication was not there to protect the reputation of Volkswagen, but was there to protect the security of a very large number of motor cars from being stolen. I refer to what I said at paras.40 to 44: "(40) If I thought the purpose of this injunction was to save Volkswagen's embarrassment I would not hesitate to refuse it. The paper in its redacted form will not prevent the defendants from saying that they have, in fact, derived the Megamos Crypto algorithm and that there is, in fact, an attack based on its weakness. Moreover, relevant people, Thales, EM, Delphi and Volkswagen, now know what the problem is. They have a chance to do something about it. (41) I sympathise with the defendants to some extent, in that they engaged in what they regarded as responsible disclosure when they told EM in November 2012. However, when Volkswagen raised the problem a few weeks ago, in my judgment, it was not consistent with the idea of responsible disclosure for the defendants to simply say, "We are going ahead anyway". It may well not be the defendants' fault that Volkswagen were not told earlier, but once the defendants were told about Volkswagen's concern a responsible academic, concerned with responsible disclosure, would have realised that publication should be delayed, at least for a reasonable period, to allow for discussion with Volkswagen. Instead, the defendants have forced this interim injunction application to be dealt with in less than a month. A responsible approach would be to recognise the legitimacy of the interest in protecting the security of motor vehicles. (42) I also note that the defendants refuse, in fact, to even redact Definition 3.8, as asked for by EM and Delphi at a meeting in June. I think the defendants' mantra of "responsible disclosure" is no such thing. It is a self-justification by defendants for the conduct they have already decided to undertake and it is not the action of responsible academics. (43) On material as it is, the claimants have much more than a merely arguable case. Albeit that the merits are not overwhelming, I find that the merits are sufficiently strong to justify interference with academic freedom and freedom of expression in this case pending trial. (44) I recognise the high value of academic free speech, but there is another high value, the security of millions of Volkswagen cars." 54. I turn to the recent decision (yesterday) of the Supreme Court in PJS v. Newsgroup. Many cases in which s12 comes into play are privacy cases in which Art.8 rights and Art.10 rights have to be balanced. Yesterday's PJS case was one of those. I refer to paras.19 and 20 of the judgment of Lord Mance: www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 10/13