An ex parte application was made to quash a decision by the Advertising Standards Authority upholding a complaint that the applicants in that case were in breach of the British Codes of Advertising and Sales Promotion, and an injunction to prevent the respondents from publishing their adjudication. Popplewell J considered the question whether or not injunctive relief should be granted.
Popplewell J said: ‘The respondents have taken two discrete points. Firstly, in the light of Laws J’s decision in R v Advertising Standards Authority Limited [1992] WLR 1289. A public body should not normally be restrained from discharging its ordinary duties of expressing opinions or conveying information, save on pressing grounds, which did not obtain in that case, and it is said do not obtain in the instant case . . . .
I turn to the first issue namely the decision of Laws J . . . The facts of that case are identical to the facts in the instant case. Laws J’s conclusion was based on an analogy with those decisions, too well-known to need repetition, in libel law, that a court will not restrain publication of an article even where it is defamatory where a defendant says he intends to justify it.’
‘I do not find the analogy with the libel cases enormously helpful. It does not seem to me that reference, for instance, to the freedom of expression and the protection of human rights and fundamental freedoms has any relation to the instant case. This is not an expression of opinion and conveyance of information, save in the broadest sense. It is telling people the decision to which the respondents have come. The respondents are exercising a quasi judicial function, and the very word ‘adjudication’, while it is, of course, an expression of opinion, in the same way as a judgment is an expression of a judge’s opinion, is quite different from what appears as somebody’s view in a national newspaper. Therefore, with great respect to Laws J, I do not find his decision compelling.’
As to the delay in making the application: ‘The true test, which is the balance of convenience test, must take into account that this is a public case, so that the public interest is involved, over and above the private considerations of an ordinary commercial case. Looking at the balance of convenience, I have to see where that lies.’
‘In my view the correct approach is first to ask whether there is a serious issue that the Act in question is unlawful; and here, for the reasons I have already given, that is not the case. Beyond that, in the particular circumstances of this case, I consider that the correct approach is that adopted by Laws J (as he then was) in Vernons Organisation, to which I have already referred. There is something of a judicial dispute between Laws J and Popplewell J in his more recent judgment in R v Advertising Standards Authority ex parte Direct Line Financial Services Limited [1998] COD 20. To the extent that it might be appropriate for a deputy judge to join the debate, I unhesitatingly take the view that Laws J is correct. This is essentially a matter of public law and it must be addressed in public law terms. The general principle is that the courts will not restrain the expression of an opinion or the conveyance of information whether by private individual or a public body, save on exceptional grounds, and that principle is not disengaged because an intended publication contains material which is subject to legal challenge. A public body would not normally be restrained from discharging its ordinary duties on that ground. That is particularly so where, as in the present case, the public body has a duty to protect the public. The judgment of Laws J was delivered in 1992, and his reasoning is all the more compelling today in the light of the effect of the Human Rights Act 1998.
(36) I also consider that there is a compelling analogy here with the reasoning of Bonnard v Perryman [1891] 2 Ch 269 in the context of defamation. In any event, before an injunction would be granted it would be necessary for the court to consider what damage would be caused to the claimant. There has been no real attempt by the claimant to rely on damage to reputation or damage to the claimant in other ways. There is very little in the way of evidence which might support such a claim. Rather, the application has been made on the basis of the impact of the ruling on the industry generally. It seems to me that the interests of the industry and the public at large will be better served by an open debate on the adjudication at an early opportunity. In any event, the public policy considerations on which the defendant relies in this case are, to my mind, compelling and would be strong reasons against the grant of an injunction.’
Judges:
Popplewell J
Citations:
[1997] EWHC Admin 770
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Advertising Standards Authority Ltd Ex Parte Vernons Organisation Ltd QBD 9-Dec-1992
An injunction was not granted to restrain the publication of a decision of the ASA pending the result of a challenge by way of Judicial Review. There is a general principle in our law that the expression of opinion and the conveyance of information . .
Cited by:
Cited – Debt Free Direct Ltd, Regina (on the Application Of) v Advertising Standards Authority Ltd Admn 15-May-2007
The claimant sought continuation of a without notice interim injunction to restrain the defendant from publishing its findings on a complaint against the claimant. . .
Lists of cited by and citing cases may be incomplete.
Media, Administrative
Updated: 01 December 2022; Ref: scu.137715
