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The approach in American C


The approach in American C requires the applicant to establish merely that there is a “serious question to be tried” before the court will examine whether the “balance of convenience” lies in granting or denying interim relief. under s12 (3) a higher threshold is established. The court must consider the likely outcome of the trial before examining the balance of convenience. When introducing the Human rights bill into Parliament, the (then) Home secretary Jack straw explained the function of s 12 (3) in the Manchester Taxi case.

“that the courts should consider the merits of an application when it is made and not simply grant it to preserve the status quo ante between parties”

This was authoritatively discussed in the Cream Holdings case. Applying the American C test, the trial judge granted and Court of appeal upheld. however, on further appeal the House of Lords rejected the general test as incompatible with s 12 (3)

Lord Nicholls suggested that the appellant must establish that his/her prospect of success at trial are “sufficiently favourable’ to justify an interim order. It must be more likely than not that the applicants claim will succeed at trial.

Regarding the “geo – blocking,” the infamous Spycatcher litigation of the 1980s is of relevance here. Approaching thirty years ago, it was eventually found that a controversial book by a former MI5 agent revealing all in the “kiss and tell” of the espionage world could be published in the UK, after it had enjoyed publication (and indeed literary success) in Australia and many other foreign countries. With its secrets already revealed, banning the book in the UK was (eventually) seen as pointless


Categorized as: The approach in American C

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