Supreme Court in PJS v News Group Newspapers

Critically assess the reasoning of the Supreme Court in PJS v News Group Newspapers Ltd [2016] UKSC 26 by making specific reference to their Lordships discussion of the test opined in American Cyanamid Co v Ethicon Ltd [1975] AC 396 which ought to be applied when considering an application for the grant ( or otherwise) of an interim injunction.

Slide 1

I will be analysing the reasoning of the Supreme Court’s decision in PJS v News Group Newspapers ltd 2016, by making reference to the test set out in  the American Cyanamid v Ethicon ltd 1975 case. The Supreme Court in PJS ruled on the validity and application of the tests set out in American, when deciding whether an interim injunction is appropriate relief.  

Slide 2

I will  firstly explore the SC’s reasoning for dismissing the CA’s application of the ECHR. Secondly I will explore the American ‘balance of probabilities’ theory which the SC rule was incorrectly placed by the CA. I will be referencing the case of Double Glazing Glasgow in my findings too.

Lord Justice Jackson had said that Section 12 of the Human Rights Act “enhances the weight which [ECHR] article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant [PJS] must overcome in order to obtain an interim injunction” ([2016] EWCA Civ 393 para 40).

In breach of confidence cases—where, traditionally, the predicate of the claim is that the information at issue is confidential and true—the position, by contrast, is generally governed by American Cyanamid: the court has the power to grant an interim injunction restraining disclosure if that is where the balance of justice lies.

In pre-HRA cases, including claims for breach of confidence, however, where ‘the decision on [the] application for an interlocutory injunction would be the equivalent of giving final judgment and, in particular, where the subject matter of the application … was the transmission of a broadcast or the publication of an article the impact and value of which depended on the timing of the transmission or publication’, the American Cyanamid test was deemed inappropriate and the court was required to assess the relative strength of the parties’ cases before deciding whether an injunction should be granted.7

Since the coming into force of the HRA and the designation of breach of confidence as the appropriate vehicle for the recognition of individuals’ Article 8 ECHR privacy rights in the form of the new tort of misuse of private information ,

the court’s power to grant an interim injunction in any case where the ‘relief … if granted, might affect the exercise of the Convention right to freedom of expression’ has been circumscribed by section 12 HRA.

Section 12(3) of the Act was interpreted by the House of Lords in Cream Holdings Ltd v Banerjee to mean that, in order to obtain an interim injunction, the claimant must ordinarily show (at least) that his claim is more likely than not to succeed at trial