03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief 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. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code." 50. The key passage in Cream Holdings is para.22: "In my view section 12(3) calls for a similar approach. 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 favourable 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. But there will be cases where it is -8- necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal." 51. The claimant cited a judgment of mine in Interflora v. Marks and Spencer [2014] EWHC 4168 (Ch). That case involved Art.10, but it was a trademark case. It did not involve privacy or Art.8. I adhere to what I said in that judgment at paras.16 to 27 and then also paras.36 to 37. I will refer only to two particular parts. At para.27 I attempted to summarise as briefly as possible what Lord Nichols was explaining in Cream Holdings as: "…in general, the threshold for the test of likelihood means 'probably will win', 'more likely than not', but there are clear exceptions and in the end, the court has to conduct a careful balancing of rights and freedoms." 52. Also in paras.36 and 37, I said: "(36) Despite Mr. Silverleaf's submission, I am struck by the nature of the Court of Appeal's decision [in the same case] and its approach in this case. It seems to me that, given the Court of Appeal in this case, it is impossible to say that Interflora are more likely www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 9/13