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(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.

50. The practice established in applications for interim injunction by American Cyanamid v Ethicon,(1975) A.C. 396 of not considering the merits of the case once it had been shown there was a serious issue to be tried, but determining where the balance of convenience lay between the parties as regards the imposition of a restraining order, has been rejected as inappropriate in defamation cases [Trevor Vs. Solomon, (1977) 248 E.G. 779 CA], as has the rights 'balancing' approach which has been adopted in privacy and harassment cases [Greene Vs. Associated Newspapers Ltd, (2005) Q.B. 972].

54. This statement of the law has been endorsed and applied consistently since 1891. [See Fraser Vs. Evans, (1969) 1 QB 349; Crest Homes Ltd. Vs. Ascott, (1980) FSR 396; Herbage Vs. Pressdram Ltd., (1984) 1 WLR 1160; Holley Vs. Smyth, (1998) QB 726; Monson Vs. Tussauds Ltd, (1894) 1 QB 671; Burns Vs. Associated Newspapers, (1926) 42 TLR 37; and Khashoggi Vs. IPC Magazines, (1986) 1 WLR 1412].

55. According to Gatley on Libel and Slander, in recent times the rigidity of the rule has been criticised as incompatible with the proper application of European Convention on Human Rights and Fundamental Rights (ECHR) law, which requires the court to strike a balance between competing rights, notably Art.8 (respect for private life) and Art.10 (freedom of expression). But though it has been judged that it is not enough for a defendant in the face of a statement of the claimant that the words are untrue merely to assert that the words are true or to state that he intends to justify without identifying the ambit or extent of that defence, the Court of Appeal in Greene Vs. Associated Newspapers Ltd., (2004) EWCA (Civ.) 1462 has unequivocally re-asserted the absolute nature of the rule in defamation cases which it held was unaffected by the Human Rights Act 1998. For the moment, therefore, the proposition that a claimant cannot obtain an interim injunction to restrain the publication of defamatory words in the face of a statement from the defendant, verified as true, that he can and will justify the alleged libel, can be regarded as an invariable rule, unless it is plain that the plea of justification is bound to fail. The claimant need not state that he will justify the particular words or allegation comprising the alleged libel; it is sufficient for him to declare his intention to justify the core or sting of the alleged libel, provided, of course, that the core or sting is a wider or more general meaning than that conveyed by the particular matters described in the words complained of, and is a meaning the words are capable of bearing.

56. In England, injunctions on the ground of privacy/misuse of private information have also been granted like in Campbell Vs. Mirror Group Newspapers, (2004) 2 A.C. 457. A tabloid, has dubbed the system of privacy injunction as 'cheater‟s charter'.

RULE IN AUSTRALIA AND NEW ZEALAND

57. In Australia it has been said that the rule in Bonnard v Perryman (supra) does not apply. But the rule has come under scrutiny by the High Court in Australian Broadcasting Corp. Vs. O'Neill, (2006) HCA 46 considering the legal principles applicable to the grant of interim injunctions in defamation cases. The court undertook an extensive review of both English and Australian case law, demonstrating how the latter had absorbed in large measure the reasoning behind the rule in Bonnard v Perryman (supra), that freedom of speech was paramount, without converting it into a rigid and inflexible maxim. The majority's opinion stands as under:-

"Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience...Formulations of principles which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially is likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded."