trial; on the other side of things, it is hard to see why, in this case at least, an
interlocutory injunction should not be granted (and, a fortiori, continued) if a
permanent injunction is likely to be granted. In this context, the proper approach to
likelihood is as set out by Lord Nicholls in Cream Holdings Ltd v Banerjee [2005]
1 AC 253, para 22, which is set out by Lord Mance in para 19 above.
55.
In January 2016, the Court of Appeal thought it was likely that, at the end of
the trial of this action, a judge would grant a permanent injunction restraining NGN
from publishing the story. Accordingly, the question to be resolved is whether,
despite the publicity which has already been given to the story, as described by Lord
Mance in paras 6, 7 and 8 of his judgment, that is still the likely outcome at trial.
56.
On that centrally relevant issue, it must be remembered that this is an
application to discharge an interlocutory judgment before the trial of the action
concerned. NGN’s case must therefore be that the interlocutory injunction should
be revoked because of “some significant change of circumstances” since it was
granted in January 2016 - Thevarajah v Riordan [2016] 1 WLR 76 para 18 citing
Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1985] 1 WLR 485, 492-493.
Accordingly, with the exception of the effects of the subsequent publicity referred
to in para 55 above, the conclusions reached in the first judgment of the Court of
Appeal must be assumed to be correct; in particular, it must be assumed that there
is no public interest in publication of the story, and that, were it not for the publicity
which has occurred since January 2016, it is likely that a permanent injunction
would be granted.
57.
If PJS’s case was simply based on confidentiality (or secrecy), then, while I
would not characterise his claim for a permanent injunction as hopeless, it would
have substantial difficulties. The publication of the story in newspapers in the United
States, Canada, and even in Scotland would not, I think, be sufficient of itself to
undermine the claim for a permanent injunction on the ground of privacy. However,
the consequential publication of the story on websites, in tweets and other forms of
social network, coupled with consequential oral communications, has clearly
resulted in many people in England and Wales knowing at least some details of the
story, including the identity of PJS, and many others knowing how to get access to
the story. There are claims that between 20% and 25% of the population know who
PJS is, which, it is fair to say, suggests that at least 75% of the population do not
know the identity of PJS, and presumably more than 75% do not know much if
anything about the details of the story. However, there comes a point where it is
simply unrealistic for a court to stop a story being published in a national newspaper
on the ground of confidentiality, and, on the current state of the evidence, I would,
I think, accept that, if one was solely concerned with confidentiality, that point had
indeed been passed in this case.
Page 29
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