302:, who made their judgment on 14 October 2004, provided by Lord Nicholls. Nicholls made it clear that Section 12 of the Human Rights Act "makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order", cautioning that courts should be very reluctant to grant relief in favour of a party who is unable to establish that it is more likely than not that he will succeed at trial. He said that "more likely than not", the phrase used in the Act, was a higher threshold to meet than "a real prospect of success", the previous test, which was not intended to apply to the media. While saying this, Nicholls also suggested that the initial test was not necessarily an improper one, but that Lloyd J had overlooked the element of public interest in the disclosure. As such, the House of Lords allowed the
199:, with the other judges assenting. In it, Nicholls said that the test required by the Human Rights Act, "more likely than not", was a higher standard than "a real prospect of success", and that the Act "makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order", asserting that in similar cases courts should be reluctant to grant interim injunctions unless it can be shown that the claimant is "more likely than not" to succeed. At the same time, he admitted that the "real prospect of success" test was not necessarily insufficient, granting the appeal nonetheless because Lloyd J had ignored the public interest element of the disclosure. As the first confidentiality case brought after the Human Rights Act,
31:
220:
that, if a court is considering whether to grant relief which infringes on the right to freedom of expression (such as an injunction), it must "have particular regard to the importance of the
Convention right to freedom of expression", although recognising the other limits put on this right. Where a relief (such as an injunction) is granted in the absence of the respondent, the court must be satisfied that the claimant has taken all reasonable steps to ensure that the defendant was notified, unless there are compelling reasons why they should not be. The court must also not grant relief that would restrict publication before trial, unless satisfied that it is "likely" the trial will establish that publication should not be allowed.
238:
from publishing any further material received from
Banerjee. The second defendant admitted that the information was confidential, but argued that it was in the public interest to disclose it. Historically, courts had been willing to grant interim injunctions where confidentiality had been breached,
223:
Cream
Holdings (the claimant) started as a group of nightclubs in Liverpool, later franchising their name, logo and brand. Chumki Banerjee (the first defendant) was an accountant advising the Cream group from 1996 to 1998, officially joining Cream as the financial controller for one of their groups
219:
into
British domestic law. Article 8 of the convention covers "the right to respect for private and family life", and during the passage of the Act through Parliament, elements of the press were concerned that this could affect their freedom of expression. As such, Section 12 of the Act provides
177:
on freedom of expression. The Act, particularly
Section 12, cautioned the courts to only grant remedies that would restrict publication before trial where it is "likely" that the trial will establish that the publication would not be allowed. Banerjee, an accountant with Cream Holdings, obtained
263:, arguing that Lloyd J had applied the "a real prospect of success" test, rather than the requirement under the Human Rights Act that the claimant demonstrate a "likely" chance of success. On 13 February 2003, Simon Brown and
184:, who ran a series of articles on 13 and 14 June 2002 asserting that a director of Cream had been bribing a local council official in Liverpool. Cream applied for an emergency injunction on 18 June in the
224:
in
February 1998. In January 2001 she was dismissed, taking documents with her which she claimed showed illegal and improper actions by Cream. These were given to the group controlling the
192:
decided on 5 July that Cream had shown "a real prospect of success" at trial, granting the injunction. This judgment was confirmed by the Court of Appeal on 13 February 2003.
234:
published articles asserting that one of the Cream directors was bribing a local council official. On 18 June, Cream applied for an interim injunction preventing the
259:(Chancery Division) granted an interim injunction, saying that Cream had shown "a real prospect of success" at trial. The defendants appealed to the
243:
was the first case to test the extent of the Human Rights Act, and the standard set is the standard one applied in breach of confidentiality cases.
475:
Devonshire, Peter (2005). "Restraint on freedom of expression under the Human Rights Act: Cream
Holdings Ltd v Banerjee in the House of Lords".
283:
196:
117:
571:
329:
276:
170:
41:
517:
Lewis, Mark; Charlotte Hinton (2005). "Interim restraint orders: clarification of
Section 12(3) of the Human Rights Act 1998".
299:
133:
547:
295:
129:
348:
268:
260:
101:
252:
189:
216:
465:
178:
documents which she claimed contained evidence of illegal and unsound practices on Cream's part and gave them to the
30:
226:
180:
566:
496:
Foster, Steve (2004). "Freedom of expression, prior restraint and section 12 of the Human Rights Act 1998".
52:
Cream
Holdings Limited & Others v Chumki Banerjee & The Liverpool Daily Post & Echo Limited
195:
Leave was given to appeal to the House of Lords, where a judgment was given on 14 October 2004 by
16:
Decision by the House of Lords on the impact of the Human Rights Act 1998 on freedom of expression
256:
212:
185:
174:
96:
8:
344:
230:(the second defendant), with Banerjee receiving no payment. On 13 and 14 June 2002, the
264:
543:
526:
505:
484:
461:
325:
77:
347:, Ch 650, 2 All ER 318, HRLR 18, EMLR 16, 3 WLR 999 (13 February 2003),
272:
560:
530:
509:
488:
291:
166:
125:
287:
203:
is the leading case used in
British "breach of confidentiality" cases.
121:
81:
341:
Cream Holdings Limited & Others v Banerjee & Another
322:
Cream Holdings Limited & Others v Banerjee & Others
271:
held that Lloyd J had used the appropriate test, although
275:
LJ dissented. The defendants were allowed appeal to the
516:
282:In the House of Lords, the case was considered by
558:
540:Blackstone's Guide to the Human Rights Act 1998
458:Criminal Justice and the Human Rights Act 1998
215:, which came into force in 2000, brought the
474:
29:
542:(4th ed.). Oxford University Press.
559:
537:
495:
455:
358:
356:
269:Court of Appeal of England and Wales
261:Court of Appeal of England and Wales
102:Court of Appeal of England and Wales
217:European Convention on Human Rights
13:
353:
14:
583:
572:2004 in United Kingdom case law
449:
437:
428:
419:
227:Liverpool Daily Post & Echo
181:Liverpool Daily Post & Echo
410:
401:
392:
383:
374:
365:
334:
315:
1:
309:
163:Cream Holdings Ltd v Banerjee
155:confidentiality, human rights
24:Cream Holdings Ltd v Banerjee
7:
345:[2003] EWCA Civ 103
246:
169:was a 2004 decision by the
10:
588:
525:(2). Sweet & Maxwell.
504:(2). Coventry University.
483:(2). Sweet & Maxwell.
154:
149:
144:
139:
113:
108:
92:
87:
73:
65:
57:
47:
37:
28:
23:
519:Entertainment Law Review
456:Cheney, Deborah (1999).
328: (14 October 2004),
206:
477:Civil Justice Quarterly
425:Devonshire (2005) p.195
398:Devonshire (2005) p.194
362:Devonshire (2005) p.196
306:and Banerjee's appeal.
326:[2004] UKHL 44
538:Wadham, John (2007).
257:High Court of Justice
213:Human Rights Act 1998
186:High Court of Justice
175:Human Rights Act 1998
173:on the impact of the
97:High Court of Justice
567:House of Lords cases
498:Coventry Law Journal
443:Foster (2004) p.89
434:Foster (2004) p.88
407:Foster (2004) p.87
380:Wadham (2007) p.66
371:Cheney (1999) p.41
99:Chancery Division
549:978-0-19-929957-7
416:Lewis (2005) p.38
389:Lewis (2005) p.37
159:
158:
579:
553:
534:
513:
492:
471:
444:
441:
435:
432:
426:
423:
417:
414:
408:
405:
399:
396:
390:
387:
381:
378:
372:
369:
363:
360:
351:
338:
332:
319:
251:On 5 July 2002,
109:Court membership
33:
21:
20:
587:
586:
582:
581:
580:
578:
577:
576:
557:
556:
550:
468:
452:
447:
442:
438:
433:
429:
424:
420:
415:
411:
406:
402:
397:
393:
388:
384:
379:
375:
370:
366:
361:
354:
349:Court of Appeal
339:
335:
320:
316:
312:
304:Post & Echo
249:
236:Post & Echo
232:Post & Echo
209:
132:
128:
124:
120:
104:( EWCA Civ 103)
100:
61:14 October 2004
17:
12:
11:
5:
585:
575:
574:
569:
555:
554:
548:
535:
514:
493:
472:
466:
451:
448:
446:
445:
436:
427:
418:
409:
400:
391:
382:
373:
364:
352:
333:
330:House of Lords
313:
311:
308:
277:House of Lords
248:
245:
208:
205:
171:House of Lords
157:
156:
152:
151:
147:
146:
142:
141:
137:
136:
115:
114:Judges sitting
111:
110:
106:
105:
94:
90:
89:
85:
84:
75:
71:
70:
67:
63:
62:
59:
55:
54:
49:
48:Full case name
45:
44:
42:House of Lords
39:
35:
34:
26:
25:
15:
9:
6:
4:
3:
2:
584:
573:
570:
568:
565:
564:
562:
551:
545:
541:
536:
532:
528:
524:
520:
515:
511:
507:
503:
499:
494:
490:
486:
482:
478:
473:
469:
467:0-85308-504-8
463:
459:
454:
453:
440:
431:
422:
413:
404:
395:
386:
377:
368:
359:
357:
350:
346:
342:
337:
331:
327:
323:
318:
314:
307:
305:
301:
297:
293:
292:Lord Hoffmann
289:
285:
284:Lord Nicholls
280:
278:
274:
270:
266:
262:
258:
254:
244:
242:
237:
233:
229:
228:
221:
218:
214:
204:
202:
198:
197:Lord Nicholls
193:
191:
187:
183:
182:
176:
172:
168:
165:
164:
153:
148:
143:
140:Case opinions
138:
135:
131:
127:
126:Lord Hoffmann
123:
119:
118:Lord Nicholls
116:
112:
107:
103:
98:
95:
93:Prior actions
91:
86:
83:
79:
76:
72:
68:
64:
60:
56:
53:
50:
46:
43:
40:
36:
32:
27:
22:
19:
539:
522:
518:
501:
497:
480:
476:
457:
450:Bibliography
439:
430:
421:
412:
403:
394:
385:
376:
367:
340:
336:
321:
317:
303:
281:
250:
240:
235:
231:
225:
222:
210:
200:
194:
179:
162:
161:
160:
88:Case history
51:
18:
460:. Jordans.
267:LJJ in the
561:Categories
310:References
296:Lord Scott
288:Lord Woolf
130:Lord Scott
122:Lord Woolf
78:transcript
74:Transcript
531:0959-3799
510:0965-0660
489:0261-9261
300:Lady Hale
134:Lady Hale
247:Judgment
188:, where
150:Keywords
145:Nicholls
66:Citation
255:in the
253:Lloyd J
190:Lloyd J
167:UKHL 44
69:UKHL 44
58:Decided
546:
529:
508:
487:
464:
273:Sedley
82:BAILII
343:
324:
265:Arden
241:Cream
207:Facts
201:Cream
38:Court
544:ISBN
527:ISSN
506:ISSN
485:ISSN
462:ISBN
298:and
239:but
211:The
80:at
563::
523:16
521:.
500:.
481:24
479:.
355:^
294:,
290:,
286:,
279:.
552:.
533:.
512:.
502:9
491:.
470:.
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.
.svg)