03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) WLR 605. Neither side referred to the possible distinction between criticism of the performance itself (or what would be the "work" under s30) and criticism of the actions of individuals discussed in Ashdown v Telegraph Group [2001] EWCA Civ 1142. Neither side also referred to the requirement for the performance to have been made available to the public, although since public could watch it, I will take it that element is satisfied. 44. Standing back, in my judgment there is a good arguable case that the fair dealing defence may apply. Therefore, overall, each side has an arguable case relating to performer's rights. Causes of action together 45. Taking these matters together, the claimants have arguable causes of action. Some parts of those claims are strong, but other parts are at least properly arguable. Equally well, the defendant has fully arguable defences to all the claims, much but not all of which depends on the disputed issue of fact concerning the Code of Conduct. Interim injunction 46. I turn to the issues arising from the application for an interim injunction. The major argument before me was whether this application should be regarded as an attempt to get around the approach to prior restraint in libel and the rule in Bonnard v. Perryman. CAPS say this is really a case about defamation and this can be seen because Heythrop places such reliance on damage to its reputation. Heythrop says this is not the correct analysis because Heythrop accepts that CAPS can publish the words in the form of the articles already published, or words to that effect, and Heythrop emphasises that it is the use of the pictures which is all that Heythrop seeks to restrain. Use of these pictures, says Heythrop, infringes its legal rights irrespective of defamation. It is true that the harm it relies on at this interim stage is harm to its business, losing contracts, for example, caused by injury to its reputation caused by this campaign. But Heythrop argues that it cannot be that if a claimant suffers harm to its business caused by arguable legal wrongs which the law recognises distinct from defamation, then that claimant is not entitled to rely on that kind of harm when seeking to enforce its legal rights. As for the engagement of Art.10 and Cream Holdings, Heythrop reserves the issue of whether Art.10 is engaged; but says that, even if it is, it makes no difference on the facts of this case because Cream Holdings shows that the standard ultimately is a flexible one or, I should say, can be a flexible one in an appropriate case. 47. Heythrop contends that when considering the three American Cyanamid factors - arguable case, unquantifiable harm and balance of convenience or justice - Cream Holdings simply serves to fortify the first of these factors. So, whereas outside the application of s.12 and under American Cyanamid what is needed at the first stage is an arguable case, if s.12 applies what is needed is a stronger case. But once that first test is satisfied the other factors of unquantifiable harm and balance of justice apply just as they would following American Cyanamid and in this case they favour the claimant. 48. CAPS submits that that is not right. It contends that freedom of speech and the importance of journalistic endeavour by organisations like CAPS to bring matters of public interest to the public's attention is crucial. It repeats its submission that the claim does not meet the Cream Holdings threshold nor, even taking a more flexible approach, does it justify injunction bearing in mind the clear journalistic nature of what CAPS is doing. 49. In my judgment, Art.10 is at least sufficiently engaged in this case to mean that the analysis of the governing law must start with s.12 and Cream Holdings. Section 12 provides as follows: "(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 8/13