03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) is entirely journalistic in nature and that the claimant cannot show that it is more likely than not that its claims will succeed and so no injunction should be granted. 17. The matter was called on on Tuesday of this week, I heard the case and indicated I would give judgment today (Friday). That gave me the opportunity to reflect on it, but it is also gave me the opportunity to watch the videos produced by CAPS and some stills which were taken from them. I was provided with a USB stick in order to do this. Counsel also made some brief further written submissions arising from that, which I have taken into account. 18. In the meantime, yesterday, the Supreme Court gave judgment in PJS v. Newsgroup Corporation [2016] UKSC 26. As that case is concerned with s.12 and application of Cream Holdings, the judgment was clearly pertinent to this case albeit, as a case concerned with privacy, it is concerned with balancing different rights (i.e. Art 8 rights) against Art.10. I indicated to the parties that I did not see any reason to delay giving this judgment, but while not inviting further submissions, I would accept brief written submissions arising from PJS as long as they were no more than three hundred words in length. In the event, the claimants did not consider they needed to add anything. The defendant sent me brief written submissions for which I am grateful and which I have taken into account. The Evidence 19. There is a witness statement from Mr Clubb, the second claimant, who is a director of Heythrop. He explains who he is, who Heythrop are and what happened from Heythrop's point of view, the concerns they have and the reasons for this application. There is also a witness statement from Hannah Francombe, who is an administrative assistant at Heythrop. She explains how the tickets were sold and how the Code of Conduct was brought to visitors' attention. A point on Ms. Francombe's evidence is that it is not specific relating to the question of whether the Code of Conduct notice was in position at the gate, which is an important issue in the contract claim. There is also evidence from Mr. Russ, who is a solicitor for Heythrop, and he explains how Heythrop puts it case. 20. For the defendants there were three witness statements. The main one is from Nicola O'Brien. She is the campaign director of CAPS. She explains who CAPS are and what happened from CAPS' point of view. Then I have witness statements from Suzie Wright and Angela Eyre. They are the individual investigators who visited Heythrop in September 2015 and took the photographs. They are not employees, but no point has been taken on that. The argument is that the ticket contract which was entered into between Heythrop and Ms. Wright or Ms. Eyre was entered into on behalf of CAPS and therefore would be binding on CAPS. No point is taken about that before me. Causes of Action Contract 21. There is a straight dispute of fact about whether the Code of Conduct notice was where it would have needed to be in order to make it part of the contract. Mr. Clubb says it was, essentially, because that is how he always sets up his business and he checks. His evidence is that it was there at the relevant time. Ms. Wright and Ms. Eyre say it wasn't there, they did not see it. They also point to the absence of notices elsewhere in the zoo. That is relevant because Mr. Clubb's evidence was that they were posted all over the zoo, albeit that the relevant one in legal terms is the one at the gate. But CAPS says it can be seen from the photographs taken by the investigators that there were not notices all over the rest of the zoo. This is relied on to undermine Mr. Clubb's evidence. I have mentioned Ms. Francombe's evidence already. 22. There is a photograph of the ticket office on the day of the visit, which was taken by a third party and has been posted on the internet (coincidentally). It is right to say that this photograph does not show a notice on the gate, but Mr. Clubb's answer to that is that he does not agree that the time of the photograph (which is shown on the version on the internet) can be correct based on what can be seen on the image. What it looks like, says Mr. Clubb, is an image taken later in the day when the arrangements were being tidied up and that would explain why the notice is no longer visible. www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 4/13