Section 12 of the HUMAN RIGHTS ACT 1998 applies when a Court is considering whether to grant any relief which, if granted, might affect the exercise of the ECHR right to freedom of expression. Section 12(3) provides that no such relief is to be granted so as to restrain publication before trial UNLESS the Court is satisfied that the application IS LIKELY TO ESTABLISH THAT PUBLICATION SHOULD NOT BE ALLOWED. The standard required by Section 12(3) has been considered by the Court of Appeal in the trade mark case of BARGAIN BUSTING LTD v SHENZHEN SKE TECHNOLOGY CO LTD, between rival suppliers of economic cigarettes and threats of trade mark infringement proceedings. The case concerns the applicable threshold under Section 12(3). It is that the applicant has to be MORE LIKELY THAN NOT TO SUCCEED AT TRIAL. The whole point of Section 12(3) is to require the Court to apply a MERITS THRESHOLD before granting INTERIM RELIEF that affects freedom of expression. It necessarily follows that the Court hearing such an application has to take a view as to which party is more likely to prevail at trial, based on the available evidence and arguments. It does not mean that the Court should not exercise CASE MANAGEMENT DISCIPLINE to ensure that the time and expense devoted to such applications are appropriate. There is nothing about an interim injunction to restrain allegedly unjustified threats that would prevent the application of that approach.

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