Goncalo Ferreira-Malosso v Justina Nowakowska

Hearing date: 24 October 2024

Approved Judgment

THE HONOURABLE Mrs Justice Steyn DBE

Introduction

On 17 October 2024, the claimant made an urgent without notice application for an interim injunction, prior to the commencement of a claim in defamation. An interim injunction was granted by the Interim Applications Judge at a hearing, which the defendant did not attend and of which she was given no notice. This is the return date hearing.

For the reasons that I will now give, it is clear that an interim injunction was obtained by dint of the Court being misinformed as to the correct test to be applied where an interim injunction is sought in defamation proceedings. The interim injunction is now set aside.

It is unnecessary, for the purpose of addressing the current issues, to provide any detail of the statements complained of, and so I have refrained from doing so in this public judgment.

The procedural history

At 2.54pm on 17 October 2024, prior to issuing a claim, the claimant filed a without notice application notice seeking:

“An order for an interim injunction in the form of the draft attached, restraining the Defendant/Respondent from further disseminating defamatory statements about the Claimant, and/or harassing the Claimant, pending the determination of the trial in these proceedings.”

The draft order was in the form of the model contained in the Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003.

The application was supported by the first witness statement of the claimant, dated 17 October 2024. The claimant's statement explained that the matter was “ extremely urgent”. He is a professional musician, he had a music release pending the following day, 18 October 2024, and he alleged “ the Respondent is attempting to sabotage my career” ([22]).

CPR 25.3(3) provides that if an applicant makes an application without notice, the evidence in support of the application must state the reasons why notice has not been given. As the application was for a without notice order that would affect the defendant's right to freedom of expression, and the claimant did not seek to notify the defendant, the requirement was to state the “ compelling reasons why the respondent should not be notified”: s.12(2) Human Rights Act 1998. The claimant's evidence did not expressly address this issue.

The application was heard by the Interim Applications Judge at 3.30pm on 17 October 2024, and as I have said, the application was granted and the order sought was made. The order was duly served on the defendant.

Paragraph 5 of the Order required the defendant to disclose to the claimant's solicitors, within 24 hours of service of the Order upon her, the identity of each and every third party to whom she had disclosed the information defined in the confidential schedule, the date of the disclosure and the nature of the information disclosed. The defendant sent the claimant's solicitors emails on 18 October 2024 providing such disclosure.

On Monday 21 October 2024, the claimant filed a Claim Form and a copy has been sent to the defendant. It is unclear whether it has yet been sealed, or therefore formally served. The brief details of claim state:

“The Claimant's claim is for:

1. A final injunction restraining the Defendant whether by herself, her agents or otherwise howsoever, from continuing to publish, or further publishing, or causing to be published, the content of an email at 15:44 on 15 October 2024 to info@dacru.be, or any similar words defamatory of the Claimant.

2. Further or other relief that the court deems just.

3. Costs.”

Under the heading “ Value”, it states, “ The Claim is for a non-money remedy only”.

The only pleaded cause of action is in libel. However, when I drew that to the attention of Mr West, the Solicitor Advocate for the claimant, he indicated that was an error. The claimant had intended to pursue his cause of action in harassment, too, and so Mr West sought permission (if necessary) to amend the Claim Form, which I grant.

Yesterday, I put the claimant on notice of my concern that, on the face of it, the claimant appeared to have misled the court as to the correct test to apply in the context of an interim injunction application in defamation. I stated:

“The applicant appears to have done so by contending the test is the ordinary American Cyanamid test, and by failing to draw the court's attention to the long-standing Bonnard v Perryman rule: see, e.g. Gatley, 27-002 and Duncan and Neill 26.03. The applicant will need to be ready to address this matter at the return date hearing tomorrow afternoon.”

The threshold for grant of an interim injunction in libel

The threshold for granting an interim injunction in libel is exceptionally high. The American Cyanamid principles do not apply. Interim injunctions to restrain defamatory publications are subject to an even higher threshold than s.12(3) Human Rights Act 1998: Greene v Associated Newspapers Ltd [2005] QB 972, applying what is known as ‘the defamation rule’ or ‘the rule in Bonnard v Perryman’ (derived from Bonnard v Perryman [1891] 2 Ch 269). At the interim stage, the Court will not grant an injunction to restrain publication of defamatory words unless the claimant can demonstrate that their claim is “ bound to succeed”.

Gatley on Libel and Slander (13 ^th ed., 2022) addresses interim injunctions in chapter 27. At 27-002, the authors correctly state:

“Thus the Court will only grant an interim injunction where:

(1) the statement is unarguably defamatory;

(2) there are no grounds for concluding the statement may be true;

(3) there is no other defence which might succeed;

(4) there is evidence of an intention to repeat or publish the defamatory statement.

To these conditions, which will be examined in turn below, there must be added a procedural requirement imposed by s.12(2) of the Human Rights Act 1998 that the person against whom the injunction is sought must be present or represented at the application, or notified about it, unless there are compelling reasons for not doing so.” (Emphasis added.)

At 27-006, the authors of Gatley cite the decision in Bonnard v Perryman, observing that Lord Coleridge's statement of the law “ has been endorsed and applied consistently since 1891”, and that “ the Court of Appeal has unequivocally re-asserted the absolute nature of the rule in defamation cases which it held was unaffected by the Human Rights Act 1998” (citing Greene).

Duncan and Neill on Defamation (5 ^th ed., 2020), similarly, explains the defamation rule at 26.02 et seq.

Mr West relies on RBT v YLA [2024] EWHC 1855 (KB) in which Aidan Eardley KC, sitting as a deputy High Court Judge, observed:

“ Interim injunctions to prevent harassment

25. Where (as here) an injunction might affect the exercise of a defendant's ECHR Art 10 right to freedom of expression, the threshold test in Human Rights Act 1998, s.12(3) applies: “No such relief is to be...