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C.J.Q. 2004, 23(Apr), 133-151 Page 1

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C.J.Q. 2004, 23(Apr), 133-151

Civil Justice Quarterly

2004

Whither American Cyanamid?: interim injunctions in the 21st century

Andrew Keay

© 2011 Sweet & Maxwell and its Contributors

Subject: Civil procedure

Keywords: Interim injunctions; Judicial decision making

Legislation cited: Civil Procedure Rules 1998 (SI 1998 3132)


Human Rights Act 1998 s.6, s.12(3)
European Convention on Human Rights 1950 Art.10

Cases cited: R. v Secretary of State for Transport Ex p. Factortame Ltd (No.1) [1990] 2 A.C. 85 (HL)
American Cyanamid Co v Ethicon Ltd (No.1) [1975] A.C. 396 (HL)
Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 (Ch D)

*132 I. Introduction

Interim injunctions1 are regularly sought in courts in this country,2 just as they are in many jurisdictions around the
world. The goal of obtaining an interim injunction is to ensure that the status quo is maintained and that there is no
permanent harm done to the rights of the applicant before the applicant's substantive action against the respondent
can be determined finally by a court hearing.3 To this end injunctions are granted to ensure the effective
administration of justice, namely rights that the courts have a duty to protect can be fairly determined and
protected.4 It is necessary, as in any claim for equitable relief, for the applicant to be able to demonstrate that the
awarding of damages at the hearing of the substantive action will not provide an adequate remedy in the
circumstances. The law, as it does with any interim remedy, seeks to:

“[O]btain a satisfactory balance between, on the one hand, the need to reduce the risk of harm to lawful rights
pending litigation and, on the other hand, the imperative of impartiality which argues for noninterference prior to
final judgment.”5

*133 The courts endeavour to strike the correct balance in deciding whether to exercise the “immense power”6 of
awarding an injunction in the midst of uncertainty as it is usually impossible for the courts to know prior to the final

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hearing which party to the litigation is right and deserving of relief,7 if any at all. Critically, the issue of whether an
injunction should or should not be granted is a matter for the discretion of the judge hearing the injunction
application. But as we will see, there are principles or guidelines that have been laid down for judges when they are
engaged in exercising their discretion.

There are a number of problems that beset a hearing for an interim injunction. First, there is usually no oral evidence
and no opportunity for cross-examination, and discovery and inspection of documents has not taken place and
sometimes no statement of claim or defence have been served,8 so that the judge does not have before him or her, in
many instances, the full story, or at least a tested full story. Secondly, a judge hearing an application for an interim
injunction cannot devote the same time to it as the trial judge is able when the case is finally heard in full. Thirdly,
the fact of the matter is that the granting of an interim injunction will, in some cases, effectively dispose of the
matter9 and so a judge must ensure that adequate attention is given to all aspects of the application.

Undoubtedly, the greatest influence on applications for interim injunctions in England and other common law
jurisdictions, such as Australia10 and Ireland,11 has been the speech of Lord Diplock in the 1975 case of American
Cyanamid Co. v Ethicon Ltd (“American Cyanamid”),12 a case referred to as the leading authority on interim
injunctions in editions of the White Book subsequent to the decision of the House of Lords.13 The speech of Lord
Diplock has invariably been cited in judgments delivered on applications for interim injunctions. Some hailed the
speech as revolutionary,14 while others have seen it as circumscribing the discretion of judges. The speech of Lord
Diplock was intended to bring some order to the ad hoc decision-making that had been going on with applications
for injunctions for many years prior to 1975. The aim of this article is to evaluate the role of the case in the early
21st century. First, the article sketches the position in English law before Lord *134 Diplock's speech, and then, in
Pt III, briefly discusses the principles that Lord Diplock purported to lay down in American Cyanamid. Part IV
considers the aftermath of the case. Part V examines the case of Series 5 Software Ltd v Clarke,15 decided near to
the end of the last century, and which arguably re-defined the principles laid down in American Cyanamid. Part VI
discusses recent developments and how American Cyanamid is viewed today. The final part offers some concluding
remarks.

II. The backdrop to American Cyanamid

Injunctions have been granted for many years, and regarded as an element of the original office of the Court of
Chancery.16 Chancery courts have often been in a quandary when faced with an injunction application. If they
failed to grant an injunction then the plaintiff ‘s rights could be severely affected, perhaps permanently. But they
might not be able to ascertain if the plaintiff has any rights that should be protected by an injunction, and if they
granted the relief sought they could be significantly prejudicing the defendant's position. Clearly early on,17 and
certainly by the mid-19th century, courts, in exercising their discretion, had regard for the apparent strength of the
plaintiff ‘s case against the defendant,18 although as time went by balance of convenience and irreparable injury
tests19 seemed to intrude with the result that if a plaintiff could demonstrate that on the balance of convenience or
because of irreparable injury he or she should be granted the relief, that could compensate for a failure to establish
that on the merits the plaintiff was likely to succeed ultimately.20 In due course the various approaches merged into
a broader test demonstrating greater flexibility, with the plaintiff having to establish first that he or she had a prima
facie case and then the court would consider the issue of damages and the balance of convenience.

It seems that cases before 1975 tended to focus on different issues. But, the most frequently used approach to
injunctions in the first three-quarters of the last century was set out in the case of Hoffman-La Roche (F) & Co. v
Secretary of State for Trade & Industry21 where the House of Lords said that in order to succeed in an application
for an injunction, the plaintiff must establish that he or she had a prima facie case against the defendant.22 This was
the position *135 taken a little earlier by the House of Lords in J. T. Stratford & Son Ltd v Lindley,23 and it appears

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to be a well-established view24 and regarded as a practically sensible approach, for if the conclusion was reached
that the defendant was likely to win at the final hearing then normally it would be unjust to place some restraint on
the defendant up to the point of the trial, even if an undertaking as to damages was given by the plaintiff.25 The
focus on the relative strengths of the cases of the parties led, in many cases, to a virtual trial within a trial. The
practice tended to mean that interim injunction hearings became a speedy and inexpensive way of testing the
strengths of the parties.26 The effect was, as Lord Denning M.R. had said in Fellowes & Son v Fisher,27 that in 99
out of 100 cases the judge's decision at the interim hearing is accepted or the case settles and no final hearing is
necessary.28

III. American Cyanamid

In 1975 it fell to the House of Lords to hear an appeal in American Cyanamid Co. v Ethicon Ltd. As the case was
heard only a little while after their Lordships had delivered a strong view on interim injunctions in Hoffman-La
Roche (F) & Co. v Secretary of State for Trade & Industry,29 one could have been forgiven for expecting their
Lordships to say more or less the same things that had been said in Hoffman-La Roche. But that was not the case.
American Cyanamid represents what might be seen as a “sea-change”30 in the courts' approach to the granting of
interim injunctions.31

American Cyanamid has been discussed on numerous occasions and consequently I will merely rehearse the primary
points made, and the framework formulated, in the leading speech delivered by Lord Diplock (a speech that met
with the agreement of the other Law Lords). The substantive case involved a claim by the plaintiff that the defendant
had infringed the former's patent. The plaintiff sought an interim injunction to stop infringement until the hearing of
the claim. In the Court of Appeal32 (where the hearing lasted for two weeks) it was clearly stated that the plaintiff
had to establish a prima facie case before *136 any other issues, such as the balance of convenience, were
considered.33 The Lord Justices considered the conflicting affidavit evidence and came to the view that the plaintiff
had not done so. At first instance Graham J. had adopted the same approach, but had come to the opposite view.34

Lord Diplock was concerned that any decision at the interim stage was based, necessarily, on affidavit evidence
alone and was not tested by oral cross-examination. Taking the approach of the Court of Appeal would mean,
according to his Lordship, that the court's discretion would be clogged by a technical rule, i.e., the need to prove a
prima facie case.35 His Lordship opined that all a plaintiff had to establish before a court considered the balance of
convenience was that the claim was not frivolous or vexatious, namely that there was a serious question to be tried.
Lord Diplock said that it was not the court's function to resolve conflicts in the evidence or decide difficult questions
of law that involved detailed argument and considerable deliberation.36 Once a plaintiff could establish that there
was a serious question to be tried, the court had to move on to examine whether, if the plaintiff were to succeed
ultimately, he or she would be adequately compensated by an award of damages. If the answer were in the
affirmative, and the defendant was in a financial position to pay the damages' award, the plaintiff would not be
granted an injunction. However, where the answer to the damages' question was in the negative, the court was to
consider, if the defendant were to succeed ultimately, whether he or she would be adequately compensated under the
plaintiff ‘s undertaking to pay damages. If the defendant could be compensated and the plaintiff was in a financial
position to pay, the court had no reason to refrain from granting an injunction.37

According to Lord Diplock it is where there is doubt as to the adequacy of damages to either of the parties in the
scheme of things outlined in the last paragraph, that a court must consider the balance of convenience. His Lordship
said that it was not wise to enumerate the matters that could be taken into account in determining where the balance
lies, as they would vary from case to case.38 Many special factors might be taken into account in the particular
circumstances of individual cases.39 His Lordship even said that:

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“[I]f the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into
account in tipping the balance *137 the relative strength of each party's case as revealed by the affidavit evidence
…”40

But consideration of the merits of the parties' cases was only to be seen as a matter of last resort as it should only
take place where:

“[I]t is apparent upon the facts disclosed by the evidence as to which there is no credible dispute that the strength of
one party's case is disproportionate to that of the other party.”41

Clearly, the central issue for Lord Diplock was the balance of convenience. This was not a new concept in injunction
applications. For example, in 1965 in J. T. Stratford & Son Ltd v Lindley,42 the House had recognised its relevance.
In the Court of Appeal in American Cyanamid43 it was said that the balance of convenience should be taken into
account if the plaintiff can prove that he or she had a prima facie case. The Court of Appeal did not think that a
prima facie case had been made out, therefore there was no requirement to look at the balance of convenience.

The position expounded by Lord Diplock is certainly consistent with the policy behind interim proceedings, namely
not to determine who is in the right and who should succeed, but to maintain a balance so that there is a matter to be
tried at a later date,44 but many have questioned whether it was a practicable position to take.

IV. The aftermath of American Cyanamid

There has been considerable criticism of the approach propounded by Lord Diplock.45 Some judges, such as Sir
John Pennycuick in Fellowes & Son v Fisher,46 clearly stated that they felt that the old approach had worked well,
and others, such as Megaw L.J. in Alfred Dunhill Ltd v Sunoptics,47 expressed some difficulty in applying the new
approach, particularly where there was a large volume of affidavit evidence.

There have been several different kinds of responses to the case. Many judges, such as Roskill and Browne L.JJ. in
Alfred Dunhill Ltd v Sunoptics,48 have clearly indicated that they are bound by what Lord Diplock said, and have
applied the process outlined by his Lordship in determining the case. Other courts, while not denying the principles
in American Cyanamid, have indicated *138 that there are some cases where justice and the needs of the parties
dictate a fuller hearing consistent with the practice pre-American Cyanamid.49

Some judges, and Lord Denning in particular,50 have sought to continue to consider the merits of a case by, in
effect, side-stepping American Cyanamid. They have done this by relying upon the fact that Lord Diplock said that
there might be “many other special factors to be taken into consideration in the particular circumstances of
individual cases.”51 Lord Denning saw “special factors” as constituting an issue that was separate from the balance
of convenience issue, and so he felt that he was able to take into account the strength of the parties' cases in coming
to his decision, as it was a special factor. But Stamp L.J. in Hubbard v Vosper52 did not approve of this approach as
he felt that Lord Diplock was referring to special factors that affected the balance of convenience issue and not to
special factors that permitted a court to ignore the principles that his Lordship had laid down. However, even given
the interpretation of Stamp L.J., which appears to be correct, Browne L.J. in Fellowes & Son v Fisher53 expressed
the view that he did not know how a court could fairly or reasonably consider the balance of convenience without
taking some account of the relative strength of the parties' cases.54

Since American Cyanamid there have been countless cases where the courts have effectively created exceptions to
the case, either expressly or impliedly. An example is provided by NWL Ltd v Woods,55 where the House of Lords
recognised that determination at the interim level would be decisive and the matter would not go to a final

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hearing.56 Other instances of exceptions are proceedings concerning57 : the right to publish an article or the
transmission of a television programme and where time is all important58 ; applications for mandatory injunctions59
; applications for injunctions to restrain the presentation of a winding-up petition60 ; clear fraud61 ; undisputed
fact62 ; and industrial disputes.63 Returning to the exception in NWL Ltd v Woods, it is notable that Lord Diplock
himself appeared in that case to recognise the limits of what he *139 had pronounced in American Cyanamid, for he
indicated that where an interim hearing was going to be decisive, the criteria that he had set out in American
Cyanamid was not appropriate.64 The problem with his Lordship's approach, and that of a number of other
judges,65 is that many cases, if not most (given what the judges themselves have said, and, therefore, providing
reasonably accurate empirical data, one would think) are resolved by a decision on an application for an interim
injunction. For instance, and as mentioned earlier, Lord Denning M.R. in Fellowes & Son v Fisher said that after a
decision on an interim injunction application the matter goes no further in 99 out of 100 cases.66 In fact, it might be
argued that proceedings in American Cyanamid itself might well have been settled by the decision to grant the
injunction.

In other cases the courts have sought to avoid the application of the American Cyanamid principles by interpreting
them in a way that permits a judge to consider the merits of the case. In R v Secretary of State for Transport, Ex p.
Factortame,67 the House of Lords heard an application to restrain the enforcement of the Merchant Shipping Act
1988 because it was argued to be incompatible with European Union law. Lord Jauncey specifically stated that the
American Cyanamid requirement of establishing a serious question to be tried was not appropriate in the case before
the House, a case that only involved a question of law. His Lordship said that a strong prima facie case needed to be
established, but his Lordship emphasised that he was not being critical of the Lord Diplock approach.68
Interestingly, and this probably is indicative of the divergence in response to American Cyanamid, Lord Goff felt
that the American Cyanamid principles were appropriate in deciding Factortame. Notwithstanding that, his Lordship
did say that the public interest in the enforcement of a valid law was so great that those impugning the validity of the
law had to put forward “matters of considerable weight … into the balance to outweigh the desirability of enforcing
… what is on its face the law.”69 This almost goes as far as saying that there is a need for a prima facie case to be
proved. It has been submitted that Lord Goff was merely paying lip service to American Cyanamid because he
ended up in the same place as Lord Jauncey, having taken a different, but more indirect route.70

*140 What was the status of Lord Diplock's comments? Were they rules or guidelines? Courts appear to have
accepted them as the latter so as not to circumscribe the court's discretion. Emphasis has been placed on the fact that
his Lordship regarded the remedy as discretionary,71 and there appears to be some flexibility in the elements that he
prescribed.72 Kerr L.J. said in Cambridge Nutrition Ltd v BBC73 that American Cyanamid “is no more than a set of
useful guidelines which apply in many cases. It must never be used as a rule of thumb, let alone as a strait-jacket”74
(my emphasis). His Lordship indicated that American Cyanamid was not laying down principles of universal
application, and in like manner Butler-Sloss L.J. in Lansing Linde Ltd v Kerr75 said that American Cyanamid only
set out guidelines and they were not to cover every eventuality.76 Lord Goff in Factortame77 agreed, stating that
they were guidelines because Lord Diplock was not intending to fetter the discretion conferred on courts, but on the
contrary was freeing them from that imposed on courts by earlier cases, namely requiring the plaintiff to establish a
prima facie case before permitting any consideration of other issues such as the balance of convenience.

A.A.S. Zuckerman has argued78 that the arguable case theory that found its genesis in American Cyanamid was put
to rest by three decisions, namely Factortame, Cambridge Nutrition Ltd v BBC79 and Lansing Linde v Kerr.80 But,
the assessment of Zuckerman does not appear to be in line with some of the recent case law, because while the case
has been, as indicated above, side-stepped or ignored because of the many exceptions devised, and the advent of the
Civil Procedure Rules has introduced a different approach to the management of cases,81 it has been applied quite
frequently. Also, the latter two cases referred to by Zuckerman can be explained on the basis of being recognised
exceptions to the American Cyanamid principles,82 and Factortame can be explained on the basis that it involved a
question of law. Furthermore, in Factortame Lord Jauncey said that he was not intending to be critical of Lord

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Diplock's approach and Lord Goff (with whom Lords Brandon and Oliver agreed) applied American Cyanamid
principles. But having said that, clearly the American Cyanamid principles are not adhered to rigidly.

One of the primary criticisms of American Cyanamid has been that the danger in not considering the merits of the
cases of the parties is that a court might *141 well give relief to a party who has no rightful claim.83 If this were to
occur of course it could precipitate significant prejudice to the party who loses at the interim stage, although it must
be said that the American Cyanamid principles attempt to ensure that if a party wins at the interim level, but fails at
trial, he or she will be required, and will be able, to compensate the other party by the payment of damages.

V. Series 5 --a new direction?

While there were several cases post-American Cyanamid where judges sought to redefine the approach that Lord
Diplock expounded, the 1996 case of Series 5 Software Ltd v Clarke84 undoubtedly represents the high-water mark.
This case involved a claim of copyright infringement and was heard by Laddie J. According to Laddie J., Lord
Diplock was addressing the unsatisfactory situation that had developed in the Court of Appeal in American
Cyanamid where the application, which related to a case that involved complex issues of chemistry and patent law,
had bogged down. Laddie J. interpreted Lord Diplock to mean that he was not saying courts cannot take into account
the strengths of the parties' cases.85 Rather, according to Laddie J., Lord Diplock was only addressing one issue,
and that was to reject the idea that there was an inflexible rule that required a plaintiff to prove that he or she had a
prima facie case before an injunction could be granted.86 Laddie J. concluded that the principles articulated in
American Cyanamid were aimed at ensuring that interim injunctions did not occupy large chunks of court time
rather than intending to proscribe any consideration of the strengths of the respective parties to the litigation; Lord
Diplock was concerned that if the approach taken in the Court of Appeal in American Cyanamid was replicated in
all hearings, there would be mini-trials, and this would cause chaos in the court system.

What courts hearing applications for interim injunctions should not attempt to do, according to Laddie J., is to
resolve difficult issues of fact and law.87 But, this fails to take account of the fact that often a judge will have to
consider complex issues of fact or law to decide whether the plaintiff has a strong enough case. Nevertheless, Laddie
J. took the view that if it is determined that one party's case is stronger than the other then it would not be right to
ignore it,88 and in his opinion that it is easy, in interim proceedings, to determine who is likely to win.89 If it is easy
to determine who is likely to win then it should be relatively straightforward to decide whether a prima facie case
has been made out. But is this the case? If that is the case why was Lord Diplock so concerned about judges trying
to ascertain whether the plaintiff had a prima facie case? *142 The difficulty, at an interim hearing, of determining
who is likely to win the case eventually is exemplified in American Cyanamid itself. In that case there were different
views expressed by the judge at first instance and by the Court of Appeal concerning the likelihood of the plaintiff
succeeding at the final hearing.90 This is not, it is respectfully submitted, an unusual state of affairs.

Notwithstanding the fact that Laddie J. stated that what he was advocating was not inconsistent with American
Cyanamid, it is difficult not to see it in such a light, mainly because the judge placed the strength of the parties' cases
on the same level as the balance of convenience.91 Also, while Laddie J. said that a court should not undertake a
mini-trial, he was effectively inviting parties to argue their cases as fully as they could at the interim hearing so that
a decision could be made on the merits.92

Laudably, in relation to this case, Laddie J. said that it is not satisfactory to pay lip service to American Cyanamid
and then apply different criteria.93 Far too often cases in the post-American Cyanamid period did not specifically
deny the application of American Cyanamid but skirted around the case. Arguably it is often unrealistic to expect a
judge not to form a view about the strength of the parties' cases when he or she is determining the balance of
convenience, and it is probably even more unrealistic to expect a judge not to be influenced by that view when

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coming to a final conclusion on the application.94 Overall, what Laddie J. expounded has been welcomed in the
literature written by practitioners, and this might be evidence of the fact that the approach adopted by his Lordship is
regarded as a highly pragmatic approach to a difficult issue.95

The comments that Laddie J. made in Series 5 were taken up in some subsequent cases. First, Laddie J. in Barclays
Bank Plc v RBS Advanta96 stated that the strength of the parties' cases is a major factor in an application for an
injunction. He said that this could be founded either on what he said in Series 5, or as part of the consideration of the
balance of convenience.97 Later in Antec International Ltd v South West Chicks (Warren) Ltd98 his Lordship was
influenced by the strength of the plaintiff ‘s case, and stated that it is perfectly proper to assess the prospects of
success of the parties' cases where this is possible on the material.99

*143 In SIG Architectural Products Ltd v Castle House Windows Ltd,100Series 5 was not cited to the judge, Robert
Walker J., but his Lordship raised it himself and indicated that he found the judgment to be helpful in reminding the
judiciary that after American Cyanamid it is still permissible to consider the relative strengths of the parties. His
Lordship seemed to be impressed by the weakness of the plaintiff ‘s case in the case before him. Subsequently,
Robert Walker J. went on in Barnsley Brewery v RBNB101 to reject the notion that Series 5 was heretical.102 His
Lordship said that he regarded it as a valuable reminder of the background and context of American Cyanamid and
the latter case's message, which was to ensure that we do not have mini-trials.103

Robert Walker L.J. (as he had now become)104 in Guardian Media Plc v Associated Newspapers Ltd,105 after
emphasising the flexibility of the American Cyanamid principles, did not go as far as Laddie J. in Series 5, but
indicated that a court is entitled, without derogating from the principles, to give “proper weight to any clear view
which the court can form at the time of the application for interim relief … as to the likely outcome at trial.”106
With respect, this appears to go further than Lord Diplock would have gone, for to do what Robert Walker L.J. is
suggesting involves, as a matter of necessity, a consideration of the merits of the case. Interestingly, in a later case,
Household Global Funding Inc v British Gas Trading,107 Robert Walker L.J. did not refer to Series 5, and seemed
to accept that the judge at first instance acted correctly in applying American Cyanamid.

In completing this section, it is appropriate to note that save for the judgments of Laddie J. himself and Robert
Walker L.J., Series 5 does not appear to have been referred to by courts in reported cases, since it was decided. This
might be an indication that the courts in general believe the approach to be flawed.

VI. American Cyanamid in a new century

We have seen that while it has received appropriate respect and application in many cases,108American Cyanamid
has been frequently either side-stepped or the *144 subject of many exceptions, as well as being the subject of some
express and implicit criticism. The latter is marked by the fact that courts have either refrained from referring to the
case or plainly said that the circumstances before them constituted an exception to the case. Also, the advent of the
Civil Procedure Rules has seen a different approach taken in relation to case management compared with the days
when American Cyanamid was decided, and consequently the case is not as critical as it once was.109

Probably the greatest effect on the impact of American Cyanamid, besides the introduction of the Civil Procedure
Rules has been the enactment of the Human Rights Act 1998, which incorporates the European Convention on
Human Rights, and the fact that the Act provides, in s.6, that courts are required to act in a way that is compatible
with the Convention, as well as taking into account the jurisprudence emanating from the European Court of Human
Rights.110 Importantly, the Human Rights Act has laid down some rules in relation to the granting of injunctions
that involve the inhibiting of free speech.

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Cases involving the Human Rights Act111

The Human Rights Act 1998 has had an appreciable impact on English law since it became operational in 2000.
Interim injunctions are able to be used by a person or body as a shield or a sword when it comes to Convention
rights.112 Clearly, the granting of interim injunctions has been affected, primarily in the area of freedom of
expression.

The focus of this section of the article is on the right of freedom of expression. Any attempt to have the publication
by a person of something restrained by injunction could fall foul of Art.10 of the European Convention on Human
Rights, which upholds the right to free expression. But it must not be forgotten that Art.10(2) recognises the fact that
to safeguard other interests a person's right to expression might be curtailed in some way by law. The effect of the
Article is that:

“Any injunction, which by definition is a restriction on the exercise of the right to freedom of expression, must be
justified as being no more than is necessary in a democratic society.”113

Most relevant to deciding whether any relief ought to be given in cases involving the right to freedom of expression,
as set out in the European Convention on Human Rights, is s.12 of the Human Rights Act 1998. Section 12(3)
relevantly provides:

*145 “No such relief [affecting the exercise of the Convention right to freedom of expression] is to be granted so as
to restrain the publication before trial unless the court is satisfied that the applicant is likely to establish that
publication should be allowed.”

How does this provision fit in with the principles provided for in American Cyanamid ? Does it affect the approach
that courts have to adopt? This is not easily resolved as the case law has caused some confusion. Some cases have
suggested that when considering s.12(3) the same principles as those laid down by American Cyanamid are to be
invoked, while another line of cases has taken the view that American Cyanamid must be put to one side and
different issues considered, principally the merits of the respective cases.

First, in Lakeside Homes Ltd v BBC,114 it was common ground that the principles in American Cyanamid did not
apply to a case where s.12(3) of the Human Rights Act 1998 had to be considered, and Cresswell J. appeared to
accept that that was correct. Shortly after that case, in Douglas v Hello Ltd,115 the Court of Appeal said, in the
context of a consideration of s.12(3) and the issue of freedom of expression, that it was incumbent on a court to
consider the merits of the case. Keenan L.J. indicated that something more than applying the principles in American
Cyanamid was required. He said that: “the court must look beyond conventional American Cyanamid principles and
seek to discern where the balance of justice lies … the court has to look ahead to the ultimate stage and to be
satisfied that the scales are likely to come down in the applicant's favour.”116

Subsequently, in Imutran Sir Andrew Morritt V.-C. said that there was no appreciable difference between what was
required by the American Cyanamid principles and what was required under s.12(3). In his judgment, his Lordship
felt that the position that he was taking was consistent with that taken in Douglas. In another single judge decision,
Theakston v MGN Ltd,117 an approach similar to the Court of Appeal in Douglas was applied. In Theakston
Ouseley J. said that:

“In any event, I have some difficulty in seeing how the approach required by section 12(3) can be other than the
Claimant must show that it is more probable than not that he will succeed in obtaining an injunction at trial … If
Parliament had intended the relevant test to be whether the claimant had a real prospect of success, it would have

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used that familiar legal phrase. I consider that it is intended to impose the discernibly more rigorous requirement
which it did in this particular context of freedom of expression.”118

*146 Thereafter, the Court of Appeal in A v B Plc119 expressed the view, in passing, that Imutran was consistent
with Douglas, thereby confusing the matter further. But, a differently constituted bench of the Court of Appeal, in
Cream Holdings Ltd v Chumki Bannerjee & The Liverpool Daily Post & Echo Ltd,120 considered the matter in
more detail and clearly stated that Imutran and Douglas were not consistent and that the approach in the former was
correct. The Court came to the same conclusion as the Court in Douglas that more than a consideration of the
American Cyanamid principles was involved when a case involved s.12(3). Specifically, the Court said that the
American Cyanamid test should not be built upon, but put to one side when s.12(3) is being considered.121 In
Cream Holdings Arden L.J., after referring to s.12(3) and the fact that it required the court to be satisfied that the
applicant was likely to establish at trial that publication should not be allowed, said:

“This is a different test from the American Cyanamid test. The exercise which the court is required to perform is an
altogether different exercise from that which it would have performed under the American Cyanamid case.”122

Her Ladyship went on to say that the court must consider the merits of the legal and factual case and after doing so
decide whether the applicant has a real prospect of success in establishing that publication should be restrained.123
Arden L.J. said that the judge has to be satisfied “that there is no obvious reason why the claim should not
succeed.”124

All of this leads one to conclude that it is no longer going to be possible for an applicant in a freedom of expression
case merely to demonstrate that there was a serious question to be tried. Clearly, the American Cyanamid principles
are not to be applied to a case that involves a consideration of s.12.

Placing what appears to be a heavier burden on applicants for injunctions involving freedom of expression is
consistent with the jurisprudence that has developed in the European Court of Human Rights concerning Art.10.
This jurisprudence has been “generally hostile to prior restraint by the courts.”125 In The Observer and The
Guardian v UK126 the European Court of Human Rights stated that applications for prior restraints are to be subject
to the most careful scrutiny by the court.127

*147 Other cases

Courts in recent times have continued the trend that developed soon after Lord Diplock's speech, namely to find that
some kinds of cases necessitate refraining from implementing the American Cyanamid principles. For instance, in
Emmanuel Francis v The Royal Borough of Kensington and Chelsea128 the Court of Appeal said that judicial
review cases are not subject to the American Cyanamid principles, as a court is to ask first whether there is a prima
facie case and then if there is, the balance of convenience element involves a wider consideration than in normal
cases, including the merits of the parties' cases.129

Other judges have continued to interpret American Cyanamid in such as way as to permit them to have regard for
the strength of the parties' cases. I have already referred to the decision of the Court of Appeal in Guardian Media
Plc v Associated Newspapers Ltd130 in the context of discussing Series 5. In Guardian Media Robert Walker L.J.
did not expressly embrace the comments of Laddie J. in Series 5, but he did state that the American Cyanamid
principles allow for flexibility and “do not prevent a court from giving proper weight to any clear view that the court
can form at the time of the application … as to the likely outcome at trial.”131 His Lordship did note in parentheses
that this must not involve a mini-trial.

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Nevertheless, as indicated earlier, courts continue to rely on American Cyanamid principles. In the recent House of
Lords' appeal in the Shayler litigation, Attorney-General v Punch,132 and dealing with a claim of contempt of court
relating to the failure to adhere to the terms of an injunction, Lord Hoffmann relied on American Cyanamid and
noted that with interim injunction applications the courts make a ruling “pending a decision on the merits.”133 Lord
Hope in his speech, after referring to the guidelines in American Cyanamid, emphasised the fact that it is not part of
the court's role to resolve conflicts of evidence or questions of law.134

The Civil Procedure Rules

Any discussion of American Cyanamid has to take place in light of the developments in practice that have occurred
as a consequence of the Civil Procedure Rules. As mentioned at the commencement of this section of the article, the
introduction of the Civil Procedure Rules has seen the emergence of a different approach to case management, with
the consequence that the principles in American Cyanamid are not as critical as they once were.135 Under the Civil
Procedure Rules there is, inter alia, greater emphasis on identifying and resolving issues likely to go to hearing as
early as possible,136 so that the *148 major concern of Lord Diplock, and manifested in his speech in American
Cyanamid, of cases bogging down, is not as acute as it once was.

An assessment

Notwithstanding the number of cases in which American Cyanamid has not been applied, for one reason or another,
the principles it laid down are still referred to regularly in the recent case law and followed in many.137
Interestingly, the court in Cream Holdings Ltd v Chumki Bannerjee & The Liverpool Daily Post & Echo Ltd138
appeared to accept the fact that if it were not dealing with the Human Rights Act, the American Cyanamid
principles would apply.139

Arguably, American Cyanamid will not be applied in nearly as many cases as it once was for three reasons. First,
the courts are continuing to add new exceptions to the application of the principles. Secondly, the existence of s.12
of the Human Rights Act is likely to lead courts in freedom of expression cases to decide that they will need to
consider the merits of the parties' arguments. Thirdly, the Civil Procedure Rules mean that “the context within which
the American Cyanamid rules were designed to operate has altered.”140 For instance, the delays between the issuing
of proceedings and the trial are significantly reduced.141 Consequently, it has been suggested that:

“there may come a time when the application of the rules to cases where the court can make a reasonable assessment
of the prospects of either side should be re-assessed by the House of Lords.”142

All of this causes one to ask: are the principles laid down by Lord Diplock doing what they were intended to do? It
could be argued that they are not. Christine Gray commented in 1981 that “there is little uniformity of approach
between decisions”143 in a post-American Cyanamid world, and it seems that that statement holds true now. There
continues to be a lack of certainty as to what approach a court is going to take.

Leaving aside Series 5, one can note that American Cyanamid has been followed more often than not in relatively
recent commercial cases,144 although with the application of the principles underlying the Civil Procedure Rules
the *149 occasions on which American Cyanamid will be applied in the future may well be fewer. But it is in non-
commercial cases, and particularly cases involving public law issues,145 where one finds that American Cyanamid
is not applied as courts either hold that the case before them is an exception to American Cyanamid or they merely
ignore the case.

VII. Conclusion

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The granting of injunctions is an important part of the work of the courts and the law that relates to them must be as
helpful as possible in guiding parties and their legal representatives. The speech of Lord Diplock in American
Cyanamid was intended to give a more precise test for determining whether or not an injunction should be granted,
and thereby bring some order to the ad hoc decision-making that preceded American Cyanamid. The problem with
the pre-American Cyanamid approach is manifested in cases like American Cyanamid itself, where the Court of
Appeal disagreed with the assessment of the judge at first instance concerning the strength of the case for the
plaintiff. But it is highly debatable whether the objective of Lord Diplock has ever been achieved. First, the
precision which the case sought to bring is illusory, because leaving aside a few cases which are resolved by the
preliminary considerations propounded by his Lordship, it is incumbent on courts to move onto a rather vague
balancing act.146 Secondly, courts, in the name of flexibility and discretion, have refrained from applying the
guidelines when it suited them.

Some147 have taken the view that American Cyanamid was never well-founded, and such commentators are
somewhat supported by the case law since 1975, for there has been the need to develop a significant number of
exceptions to it. Furthermore, there have been many attempts at side-stepping the decision by interpreting it in a way
that permits a judge to consider the merits of the case. American Cyanamid sought to bring more certainty to the
area as well as re-asserting judicial discretion, but in effect it produced uncertainty148 in that litigants did not know
whether the principles in American Cyanamid would guide the judge or whether the judge would hold that the
particular case represented an exception to American Cyanamid.

American Cyanamid remains an important case, but it might well be argued that its reach is more restricted now,
and may even become more restricted in the future than it was in the previous century. The number of exceptions to
the case have increased, although not greatly, but the advent of the Human Rights Act, and particularly the manner
in which s.12 has been interpreted in the majority of cases, has excluded the application of American Cyanamid
from, potentially, a large volume of cases. Furthermore, there is a suggestion that the *150 change in procedural
culture intended to be brought about by the Civil Procedure Rules will also see American Cyanamid applied less
frequently.

The best that lawyers can do, it would seem, is to assume that, absent cases revolving around Art.10 of the European
Convention, or cases involving well-recognised exceptions to American Cyanamid, a court may be inclined to apply
the principles laid down by Lord Diplock. Having said that, there is always the possibility that a court will decide to
create a fresh exception or modify an existing one, or even to avoid the American Cyanamid approach by, for
instance, taking the view that the merits of the parties' respective cases forms part of the special factors referred to
by Lord Diplock.

I would like to thank Professor Ian Scott for comments on an earlier version. Any errors are, of course, the
responsibility of the author.

‌ ‌

1. See CPR, r.25.10. Also, see, A. May (ed.), Civil Procedure 2003 (the White Book ) (Sweet and Maxwell, London,
2002), Vol.1 at p.514. Often these injunctions are still referred to as “interlocutory injunctions”.Unreported, June 20,
1996 and referred to in J. Phillips, “Interim injunctions and intellectual property: a review of American Cyanamid v
Ethicon in the light of Series 5 Software ” [1997] J.B.L. 486 at p.489.
2. Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 355 per Lord
Wiberforce. D. Bean asserts (Injunctions, 5th ed., Longman, 1991, at p.23) that the courts grant far more interim
injunctions each year compared with perpetual injunctions. See, for example, R. Scott (ed.), Supreme Court Practice

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1997 (Sweet and Maxwell, London, 1996), Vol.1, Pt 1 at pp.503-505 for a discussion of the general principles and
particular instances of injunctions granted.[1997] F.S.R. 462.
3. See Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 355-356 (HL);
Attorney-General v Punch Ltd [2003] 1 A.C. 1046 at [99], HL.ibid., at 472.
4. Attorney-General v Times Newspapers Ltd [1992] 1 A.C. 191 at 216. According to the Court of Appeal in
Attorney-General v Punch Ltd [2001] Q.B. 1028 at 1040-1041, a court may have more than one purpose in awarding
an injunction.ibid.
5. A.A.S. Zuckerman, “Interim remedies in quest of procedural fairness” (1993) 56 M.L.R. 325 at p.326.The other
members of the court (Henry L.J. and Scott Baker J.) agreeing with his Lordship's judgment.
6. John Lebeusdorf, “The standard for preliminary injunctions” (1978) 91 Harv.L.R. 525 at p.525. Lord Diplock in
Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 360 referred to it as an
“exceptional remedy.”2000 WL 331035.
7. John Lebeusdorf, op. cit., n.6, at p.525.ibid., at para.18.
8. D. Bean, op. cit., n.2, at p.23.[2001] EWCA Civ 1156.
9. See the comments of Lord Denning in Fellowes & Son v Fisher [1976] Q.B. 122 at 129.For examples of recent
case law, see, Dyrlund Smith A/S v Tuberville Smith Ltd [1998] F.S.R. 774, CA; MacMillan Magazines Ltd v R.C.N.
Publishing Co. Ltd [1998] F.S.R. 9; United Pan-Europe Communications NV v Deutsche Bank AG [2000] 2
B.C.L.C. 461, CA; Incasep Ltd v Jones, 2001 WL 1171940; Nextcall Telecom Plc v British Telecommunications
Plc, 2000 WL 33201531; Walker v W.A. Personnel Ltd [2002] B.P.I.R. 621.
10. See Commonwealth of Australia v John Fairfax (1980) 147 C.L.R. 39; Australian Coarse Grains Pool v Barley
Marketing Board (1982) 46 A.L.R. 398.A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002),
Vol.1 at p.514.
11. H. Delany, “Practice--interim injunctions--adequacy of damages and other discretionary factors” (1993) 15
Dublin University Law Journal 228 at p.236.Human Rights Act 1998, s.2. See the comments of Dame Elizabeth
Butler-Sloss in Venables and Thompson v News Group Newspapers [2001] E.M.L.R. 10 at [100].
12. [1975] A.C. 396. The European Court of Human Rights in The Sunday Times v United Kingdom (No.2) (1991)
14 E.H.R.R. 229 at 233 said that the dominant legal principles as far as interim injunctions are concerned were
established in common law in American Cyanamid.For a broad discussion of this topic, see L. Clarke, “Injunctions
and the Human Rights Act 1998: jurisdiction and discretion” (2002) 21 C.J.Q. 29.
13. The present edition (A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002), Vol.1) follows
suit (at p.515), notwithstanding the advent of the CPR and what is stated in the edition later (at p.515) concerning
the importance of the case. Perhaps it is noteworthy that the case is not discussed in detail as it was in editions
dealing with Supreme Court Practice (up to 1999).I. Leigh and L. Lustgarten, “Making rights real: the courts,
remedies, and the Human Rights Act” (1999) 58 C.L.J. 509 at p.531.
14. C. Gray, “Interim injunctions since American Cyanamid ” (1981) 40 C.L.J. 307.Imutran Ltd v Uncaged
Campaigns Ltd [2001] 2 All E.R. 385 at para.21.
15. [1996] 1 All E.R. 853.2000 WL 1841602.
16. Hilton v Earl of Granville (1841) Cr. & Ph. 283 at 292; 41 E.R. 498 at 502.[2001] Q.B. 967.
17. In 1782 in the case of Field v Jackson (Dick. 599; 21 E.R. 404) the court relied upon the weakness of the case of
the plaintiff. See A. Gore, “Interlocutory injunctions--a final judgment?” (1975) 38 M.L.R. 672 at p.674.ibid., at
1007, 1008.
18. For example, see Glascott v Lang (1838) 3 My. & Cr. 451 at 455; 40 E.R. 1000 at 1002; Shrewsbury & C Rly v
Shrewsbury & B Rly (1851) 1 Sim. (N.S.) 410 at 426-427; 61 E.R. 159 at 165-166.[2002] EWHC 137.
19. P. Prescott (1975) 91 L.Q.R. 168 at p.169. Also, see Shrewsbury & C Rly v Shrewsbury & B Rly (1851) 1 Sim.
(N.S.) 410; 61 E.R. 159.ibid., at [20].
20. op. cit., n.6, at p.533.[2002] 3 W.L.R. 542 at [8]. It is perhaps notable that in A v B Plc Lord Woolf C.J., in
handing down the judgment of the Court of Appeal, refrained from mentioning American Cyanamid at all.
21. [1975] A.C. 295.[2003] 2 All E.R. 318.
22. ibid., at 338, 360. Also, see, for example, Cavendish House (Cheltenham) Ltd v Cavendish-Woodhouse Ltd

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[1970] R.P.C. 284, CA.ibid., at [123].


23. [1965] A.C. 269 at 323-325, 331, 342, 338.ibid., at [103].
24. For example, see Smith v Grigg Ltd [1924] 1 K.B. 655, CA; D.C. Thomson & Co. Ltd v Deakin [1952] Ch. 646,
CA; Page One Records Ltd v Britton [1968] 1 W.L.R. 157; Cavendish House (Cheltenham) Ltd v Cavendish-
Woodhouse Ltd (1968) [1970] R.P.C. 234, CA; Hubbard v Vosper [1972] 2 Q.B. 84, CA. Also this view was
articulated in several practitioner texts according to Laddie J. in Series 5 Software Ltd v Clarke [1996] 1 All E.R.
853 at 857.ibid., at [121].
25. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 856.ibid.
26. See above n.19.Douglas v Hello Ltd [2001] Q.B. 967 at 1008.
27. [1976] Q.B. 122 at 129.(1991) 14 E.H.R.R. 153.
28. See the comments of Laddie J. in Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853.ibid., at 161. See the
comments in I. Leigh and L. Lustgarten, “Making rights real: the courts, remedies, and the Human Rights Act”
(1999) 58 C.L.J. 509 at p.534.
29. [1975] A.C. 295.2003 WL 933565, CA.
30. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 855 per Laddie J.ibid., at [11].
31. Clearly the approach was a departure from previous practice. The case does not apply to Scotland. See NWL Ltd
v Woods [1979] 1 W.L.R. 1294 at 1309-1310.2000 WL 331035.
32. [1974] F.S.R. 312.ibid., at [18].
33. The same approach was clearly espoused in other cases. For example, in Cavendish House (Cheltenham) Ltd v
Cavendish-Woodhouse Ltd [1970] R.P.C. 234, CA. Also, see R. Scott (ed.), Supreme Court Practice 1997 (Sweet
and Maxwell, London, 1996), Vol.1, Pt 1 at p.504 for a succinct discussion of the balance of convenience issue.
[2003] 1 A.C. 1046.
34. In fact Graham J. had come to the conclusion that the plaintiff had made out a strong prima facie case ([1975]
A.C. 396 at 405).ibid., at [74].
35. [1975] A.C. 396 at 406. In Gulf Oil (Great Britain) Ltd v Page [1987] Ch. 327 at 333. Parker L.J. said that there
was both a serious question to be tried and a prima facie case.ibid., at [99].
36. American Cyanamid Co. v Ethicon Ltd [1975] A.C. 396 at 407.A. May (ed.), Civil Procedure 2003 (Sweet and
Maxwell, London, 2002), Vol.1 at p.514.
37. ibid., at 408.ibid.
38. ibid.For example, Douglas v Hello Ltd [2001] Q.B. 967; Guinness UDV North America Inc v Flexitrace Ltd
[2001] All E.R. (D.) 10; Incasep Ltd v Jones, 2001 WL 1171940; BFI Optilas v Blyth [2002] EWHC 2693;
Attorney-General v Punch Ltd [2003] 1 A.C. 1046.
39. For example, the public interest in Express Newspapers Ltd v Keys [1980] I.R.L.R. 247.2003 WL 117104.
40. American Cyanamid Co. v Ethicon Ltd [1975] A.C. 396 at 409.[2003] 2 All E.R. 318 at [101] and [104].
41. ibid.A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002), Vol.1, Pt 1 at p.514.
42. [1965] A.C. 269.ibid.
43. [1974] F.S.R. 312.ibid., and referring to Smithkline Beecham v Generics UK Ltd, unreported, October 23, 2001,
Jacob J.
44. A.A.S. Zuckerman, “Interim injunctions on the merits” (1991) 107 L.Q.R. 196 at p.197.op. cit., n.14, at p.313.
45. For example, see above n.18 at 171; Lord Denning in Fellowes & Son v Fisher [1976] Q.B. 122 at 130 said that
the case had perplexed the profession.For example, see MacMillam Magazines Ltd v R.C.N. Publishing Company
Ltd [1998] F.S.R. 9; Dyrlund Smith A/S v Tuberville Smith Ltd [1998] F.S.R. 774; Nextcall Telecom Plc v British
Telecommunications Plc, 2000 WL 33201531; Consolidated Oil Ltd v American Express Bank Ltd, unreported,
January 21, 2000, CA (and available through LexisNexis); Incasep Ltd v Jones, 2001 WL 1171940; Intercontinental
Energy Ltd v Jowitt, 2001 WL 1560747; London Regional Transport v The Mayor of London [2001] EWCA Civ
1491; B.F.I. Optilas v Blyth [2002] EWHC 2693.
46. [1976] Q.B. 122 at 140.For instance, see R. v Ministry of Agriculture, Fisheries and Food [1999] Q.B. 1161,
CA.
47. [1979] F.S.R. 337 at 372-373.John Lebeusdorf, op. cit., n.6, at p.540.

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48. ibid., at 365, 369-370.Notably A.A.S. Zuckerman, op. cit., n.44.


49. For example, Thomas Marshall (Exports) Ltd v Guinle [1979] F.S.R. 208.Compare the view of J. Phillips in
“Interim injunctions and intellectual property: a review of Cyanamid v Ethicon in the light of Series 5 [1997] J.B.L.
486.
50. For example, Fellowes & Son v Fisher [1976] Q.B. 22; Hubbard v Vosper [1976] Q.B. 142.
51. [1975] A.C. 396 at 409. A prime example is Lord Denning in Fellowes & Son v Fisher [1976] Q.B. 122 at 133.
52. [1976] Q.B. 142 at 185.
53. [1976] Q.B. 122.
54. ibid., at 139.
55. [1979] 1 W.L.R. 1294, HL.
56. As Lord Steyn pointed out in Attorney-General v Punch Ltd [2003] 1 A.C. 1046 at [100], decisions in
application for injunctions in industrial disputes are almost always decisive.
57. For other examples, see J. Martin, Hanbury and Martin's Modern Equity (16th ed., Sweet and Maxwell, London,
2001), at pp.784-790.
58. Cambridge Nutrition Ltd v BBC [1990] 3 All E.R. 523 at 534, CA; Douglas v Hello Ltd [2001] Q.B. 967.
59. De Falco v Crawley BC [1980] 1 Q.B. 460, CA; Leisure Data v Bell [1988] F.S.R. 367; Emmanuel Francis v
The Royal Borough of Kensington and Chelsea, 2003 WL 933565, CA.
60. Bryanston Finance Ltd v de Vries (No.2) [1976] 1 All E.R. 25, CA.
61. Alfred Dunhill Ltd v Sunoptics [1979] F.S.R. 337 at 363.
62. ibid.
63. N.W.L. Ltd v Woods [1979] 1 W.L.R. 1294 at 1308, HL; Attorney-General v Punch Ltd [2003] 1 A.C. 1046 at
[100], HL. See P. Wallington, “Injunctions and the ‘right to demonstrate”’ [1976] C.L.J. 82.
64. [1979] 1 W.L.R. 1294 at 1306. The Court of Appeal in Cayne v Global Natural Resources Plc [1984] 1 All E.R.
225 thought this to be wise. Also, see the comments of the Court of Appeal in Cambridge Nutrition Ltd v BBC
[1990] 3 All E.R. 523 and Lawrence Ashton Ltd v Ashton [1991] 1 All E.R. 385.
65. For instance, the judges of the Court of Appeal in Cambridge Nutrition Ltd v BBC [1990] 3 All E.R. 523.
66. [1976] Q.B. 122 at 133. Specifically in Attorney-General v Punch Ltd [2001] Q.B. 1028 at 1054 Lord Phillips
M.R., in the Court of Appeal, said that the claimant's objective was fulfilled in many cases by the awarding of an
injunction. Also, see Douglas v Hello Ltd [2001] Q.B. 967, although this case was decided on the basis of s.12(3) of
the Human Rights Act 1998, which requires the court to consider the merits of the case. See Cream Holdings Ltd v
Chumki Bannerjee & The Liverpool Daily Post & Echo Ltd, 2003 WL 117104 where the Court of Appeal discussed
the matter in more detail.
67. [1990] A.C. 85.
68. ibid., at 122.
69. ibid., at 117-118.
70. J. Martin, “Interim injunctions: American Cyanamid comes of age” (1993) 4 The King's College Law Journal 52
at p.57.
71. Fellowes & Son v Fisher [1976] Q.B. 122 at 139. On the same lines, see the recent Court of Appeal decision in
Smithkline Beecham Plc v Apotex Europe Ltd, 2003 WL 933395.
72. Fellowes & Son v Fisher [1976] Q.B. 122 at 139.
73. [1990] 3 All E.R. 523.
74. ibid., at 533.
75. [1991] 1 All E.R. 418.
76. ibid., at 433.
77. [1990] A.C. 85 at 116, 118. Also see the comments of Lord Jauncey at 123.
78. op cit., n.44.
79. [1990] 3 All E.R. 523.
80. [1991] 1 All E.R. 418.
81. See, A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002), Vol.1 at p.514.

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82. The decision by the courts in the respective applications for an interlocutory injunction would be decisive in the
litigation.
83. op. cit., n.5, at p.328.
84. [1996] 1 All E.R. 853.
85. ibid., at 863.
86. ibid., at 864.
87. ibid.
88. ibid., at 865.
89. ibid., at 864.
90. A point made by Derek O'Brien in “Towards a redefinition of the American Cyanamid guidelines” (1996) 30
Law Teacher 368 at p.374.
91. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 864.
92. J. Watts and L. Reynolds, “A new approach to interim injunctions?” (1996) 2 Computer and
Telecommunications Law Review 66 at p.68.
93. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 856.
94. See D. O'Brien, op. cit., n.90, at p.373.
95. See ibid. ; M. Edenborough and G. Tritton, “American Cyanamid revisited” (1996) 18 E.I.P.R. 234; A. Pelling
and J. Steinert, “Interim relief: interpreting American Cyanamid ” (1997) 8 I.C.C.L.R. 178.
96. [1996] R.P.C. 307.
97. ibid., at 318.
98. [1997] F.S.R. 278.
99. ibid.
100. See CPR, r.25.10. Also, see, A. May (ed.), Civil Procedure 2003 (the White Book ) (Sweet and Maxwell,
London, 2002), Vol.1 at p.514. Often these injunctions are still referred to as “interlocutory injunctions”.Unreported,
June 20, 1996 and referred to in J. Phillips, “Interim injunctions and intellectual property: a review of American
Cyanamid v Ethicon in the light of Series 5 Software ” [1997] J.B.L. 486 at p.489.
101. Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 355 per Lord
Wiberforce. D. Bean asserts (Injunctions, 5th ed., Longman, 1991, at p.23) that the courts grant far more interim
injunctions each year compared with perpetual injunctions. See, for example, R. Scott (ed.), Supreme Court Practice
1997 (Sweet and Maxwell, London, 1996), Vol.1, Pt 1 at pp.503-505 for a discussion of the general principles and
particular instances of injunctions granted.[1997] F.S.R. 462.
102. See Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 355-356 (HL);
Attorney-General v Punch Ltd [2003] 1 A.C. 1046 at [99], HL.ibid., at 472.
103. Attorney-General v Times Newspapers Ltd [1992] 1 A.C. 191 at 216. According to the Court of Appeal in
Attorney-General v Punch Ltd [2001] Q.B. 1028 at 1040-1041, a court may have more than one purpose in awarding
an injunction.ibid.
104. A.A.S. Zuckerman, “Interim remedies in quest of procedural fairness” (1993) 56 M.L.R. 325 at p.326.The other
members of the court (Henry L.J. and Scott Baker J.) agreeing with his Lordship's judgment.
105. John Lebeusdorf, “The standard for preliminary injunctions” (1978) 91 Harv.L.R. 525 at p.525. Lord Diplock
in Hoffman-La Roche (F) & Co. v Secretary of State for Trade & Industry [1975] A.C. 295 at 360 referred to it as an
“exceptional remedy.”2000 WL 331035.
106. John Lebeusdorf, op. cit., n.6, at p.525.ibid., at para.18.
107. D. Bean, op. cit., n.2, at p.23.[2001] EWCA Civ 1156.
108. See the comments of Lord Denning in Fellowes & Son v Fisher [1976] Q.B. 122 at 129.For examples of recent
case law, see, Dyrlund Smith A/S v Tuberville Smith Ltd [1998] F.S.R. 774, CA; MacMillan Magazines Ltd v R.C.N.
Publishing Co. Ltd [1998] F.S.R. 9; United Pan-Europe Communications NV v Deutsche Bank AG [2000] 2
B.C.L.C. 461, CA; Incasep Ltd v Jones, 2001 WL 1171940; Nextcall Telecom Plc v British Telecommunications
Plc, 2000 WL 33201531; Walker v W.A. Personnel Ltd [2002] B.P.I.R. 621.
109. See Commonwealth of Australia v John Fairfax (1980) 147 C.L.R. 39; Australian Coarse Grains Pool v Barley

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Marketing Board (1982) 46 A.L.R. 398.A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002),
Vol.1 at p.514.
110. H. Delany, “Practice--interim injunctions--adequacy of damages and other discretionary factors” (1993) 15
Dublin University Law Journal 228 at p.236.Human Rights Act 1998, s.2. See the comments of Dame Elizabeth
Butler-Sloss in Venables and Thompson v News Group Newspapers [2001] E.M.L.R. 10 at [100].
111. [1975] A.C. 396. The European Court of Human Rights in The Sunday Times v United Kingdom (No.2) (1991)
14 E.H.R.R. 229 at 233 said that the dominant legal principles as far as interim injunctions are concerned were
established in common law in American Cyanamid.For a broad discussion of this topic, see L. Clarke, “Injunctions
and the Human Rights Act 1998: jurisdiction and discretion” (2002) 21 C.J.Q. 29.
112. The present edition (A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002), Vol.1) follows
suit (at p.515), notwithstanding the advent of the CPR and what is stated in the edition later (at p.515) concerning
the importance of the case. Perhaps it is noteworthy that the case is not discussed in detail as it was in editions
dealing with Supreme Court Practice (up to 1999).I. Leigh and L. Lustgarten, “Making rights real: the courts,
remedies, and the Human Rights Act” (1999) 58 C.L.J. 509 at p.531.
113. C. Gray, “Interim injunctions since American Cyanamid ” (1981) 40 C.L.J. 307.Imutran Ltd v Uncaged
Campaigns Ltd [2001] 2 All E.R. 385 at para.21.
114. [1996] 1 All E.R. 853.2000 WL 1841602.
115. Hilton v Earl of Granville (1841) Cr. & Ph. 283 at 292; 41 E.R. 498 at 502.[2001] Q.B. 967.
116. In 1782 in the case of Field v Jackson (Dick. 599; 21 E.R. 404) the court relied upon the weakness of the case
of the plaintiff. See A. Gore, “Interlocutory injunctions--a final judgment?” (1975) 38 M.L.R. 672 at p.674.ibid., at
1007, 1008.
117. For example, see Glascott v Lang (1838) 3 My. & Cr. 451 at 455; 40 E.R. 1000 at 1002; Shrewsbury & C Rly v
Shrewsbury & B Rly (1851) 1 Sim. (N.S.) 410 at 426-427; 61 E.R. 159 at 165-166.[2002] EWHC 137.
118. P. Prescott (1975) 91 L.Q.R. 168 at p.169. Also, see Shrewsbury & C Rly v Shrewsbury & B Rly (1851) 1 Sim.
(N.S.) 410; 61 E.R. 159.ibid., at [20].
119. op. cit., n.6, at p.533.[2002] 3 W.L.R. 542 at [8]. It is perhaps notable that in A v B Plc Lord Woolf C.J., in
handing down the judgment of the Court of Appeal, refrained from mentioning American Cyanamid at all.
120. [1975] A.C. 295.[2003] 2 All E.R. 318.
121. ibid., at 338, 360. Also, see, for example, Cavendish House (Cheltenham) Ltd v Cavendish-Woodhouse Ltd
[1970] R.P.C. 284, CA.ibid., at [123].
122. [1965] A.C. 269 at 323-325, 331, 342, 338.ibid., at [103].
123. For example, see Smith v Grigg Ltd [1924] 1 K.B. 655, CA; D.C. Thomson & Co. Ltd v Deakin [1952] Ch. 646,
CA; Page One Records Ltd v Britton [1968] 1 W.L.R. 157; Cavendish House (Cheltenham) Ltd v Cavendish-
Woodhouse Ltd (1968) [1970] R.P.C. 234, CA; Hubbard v Vosper [1972] 2 Q.B. 84, CA. Also this view was
articulated in several practitioner texts according to Laddie J. in Series 5 Software Ltd v Clarke [1996] 1 All E.R.
853 at 857.ibid., at [121].
124. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 856.ibid.
125. See above n.19.Douglas v Hello Ltd [2001] Q.B. 967 at 1008.
126. [1976] Q.B. 122 at 129.(1991) 14 E.H.R.R. 153.
127. See the comments of Laddie J. in Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853.ibid., at 161. See the
comments in I. Leigh and L. Lustgarten, “Making rights real: the courts, remedies, and the Human Rights Act”
(1999) 58 C.L.J. 509 at p.534.
128. [1975] A.C. 295.2003 WL 933565, CA.
129. Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853 at 855 per Laddie J.ibid., at [11].
130. Clearly the approach was a departure from previous practice. The case does not apply to Scotland. See NWL
Ltd v Woods [1979] 1 W.L.R. 1294 at 1309-1310.2000 WL 331035.
131. [1974] F.S.R. 312.ibid., at [18].
132. The same approach was clearly espoused in other cases. For example, in Cavendish House (Cheltenham) Ltd v
Cavendish-Woodhouse Ltd [1970] R.P.C. 234, CA. Also, see R. Scott (ed.), Supreme Court Practice 1997 (Sweet

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and Maxwell, London, 1996), Vol.1, Pt 1 at p.504 for a succinct discussion of the balance of convenience issue.
[2003] 1 A.C. 1046.
133. In fact Graham J. had come to the conclusion that the plaintiff had made out a strong prima facie case ([1975]
A.C. 396 at 405).ibid., at [74].
134. [1975] A.C. 396 at 406. In Gulf Oil (Great Britain) Ltd v Page [1987] Ch. 327 at 333. Parker L.J. said that
there was both a serious question to be tried and a prima facie case.ibid., at [99].
135. American Cyanamid Co. v Ethicon Ltd [1975] A.C. 396 at 407.A. May (ed.), Civil Procedure 2003 (Sweet and
Maxwell, London, 2002), Vol.1 at p.514.
136. ibid., at 408.ibid.
137. ibid.For example, Douglas v Hello Ltd [2001] Q.B. 967; Guinness UDV North America Inc v Flexitrace Ltd
[2001] All E.R. (D.) 10; Incasep Ltd v Jones, 2001 WL 1171940; BFI Optilas v Blyth [2002] EWHC 2693;
Attorney-General v Punch Ltd [2003] 1 A.C. 1046.
138. For example, the public interest in Express Newspapers Ltd v Keys [1980] I.R.L.R. 247.2003 WL 117104.
139. American Cyanamid Co. v Ethicon Ltd [1975] A.C. 396 at 409.[2003] 2 All E.R. 318 at [101] and [104].
140. ibid.A. May (ed.), Civil Procedure 2003 (Sweet and Maxwell, London, 2002), Vol.1, Pt 1 at p.514.
141. [1965] A.C. 269.ibid.
142. [1974] F.S.R. 312.ibid., and referring to Smithkline Beecham v Generics UK Ltd, unreported, October 23, 2001,
Jacob J.
143. A.A.S. Zuckerman, “Interim injunctions on the merits” (1991) 107 L.Q.R. 196 at p.197.op. cit., n.14, at p.313.
144. For example, see above n.18 at 171; Lord Denning in Fellowes & Son v Fisher [1976] Q.B. 122 at 130 said that
the case had perplexed the profession.For example, see MacMillam Magazines Ltd v R.C.N. Publishing Company
Ltd [1998] F.S.R. 9; Dyrlund Smith A/S v Tuberville Smith Ltd [1998] F.S.R. 774; Nextcall Telecom Plc v British
Telecommunications Plc, 2000 WL 33201531; Consolidated Oil Ltd v American Express Bank Ltd, unreported,
January 21, 2000, CA (and available through LexisNexis); Incasep Ltd v Jones, 2001 WL 1171940; Intercontinental
Energy Ltd v Jowitt, 2001 WL 1560747; London Regional Transport v The Mayor of London [2001] EWCA Civ
1491; B.F.I. Optilas v Blyth [2002] EWHC 2693.
145. [1976] Q.B. 122 at 140.For instance, see R. v Ministry of Agriculture, Fisheries and Food [1999] Q.B. 1161,
CA.
146. [1979] F.S.R. 337 at 372-373.John Lebeusdorf, op. cit., n.6, at p.540.
147. ibid., at 365, 369-370.Notably A.A.S. Zuckerman, op. cit., n.44.
148. For example, Thomas Marshall (Exports) Ltd v Guinle [1979] F.S.R. 208.Compare the view of J. Phillips in
“Interim injunctions and intellectual property: a review of Cyanamid v Ethicon in the light of Series 5 [1997] J.B.L.
486.

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