03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) applying any sort of lower standard to the question of prospects of success than would be the general approach under s.12 identified in Cream Holdings, i.e. that success at trial is more likely than not. 64. Furthermore, I note that s12(3) refers to a likelihood that "publication will not be allowed". It seems to me that success required is not simply success in terms of the cause of action. It must be success relating to the prospects of obtaining an injunction based on that cause of action which would restrain publication. 65. Save for the whistleblower images, all the images are matters which the public could see on the open days and they are all images of a similar nature to images which already appear on the internet indexed by reference to Heythrop. That seriously undermines the likelihood that the court would finally restrain publication of those images even if a claim based on contract or confidence was well founded. Even if those claims were well founded, the remedy is likely to be damages. These publications do not compete with the claimant's business in selling animal photographs. Referring to the whistleblower images, the only cause of action is breach of confidence but those particular images have the strongest public interest defence in any event since they relate to alleged inhumane treatment of a polar bear and the conditions in which it was kept. As regards the claim based on performer's rights, given the journalistic nature of the publication there is a clearly arguable fair dealing defence. 66. Finally I will mention a factor which has concerned me, that is the finances of CAPS, which could be said to be particularly significant since I am considering the prospect of obtaining damages at trial rather than a final injunction. If the activities of the defendant were not so clearly journalistic in nature then I would conduct a closer analysis of the ability of CAPS to pay damages and I would have been concerned by the fact that the defendant is not likely to be in a position to pay very substantial damages in this case. However, campaigning charitable organisations will often have less financial strength than commercial claimants, although I should make it clear that I do not suggest Heythrop is a particularly large or rich organisation either. But when campaigning freedom of speech and harm to a commercial reputation are the key issues, it would not be welcome if the issue of interim relief were to turn on the relative financial strength of a campaigning charitable organisation like the defendants. 67. Overall, in my judgment there is not a sufficient likelihood that the claimant will obtain a final injunction at trial based on any of these causes of action to justify the interference with journalistic freedom of speech which an interim injunction would involve. I will refuse the interim injunction. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: http://www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 13/13