The test at the time for a preliminary injunction in defamation cases was Bonnard v Perryman, where it was established that the applicant has to show "a real prospect of success" at trial.

While the damage from a breach of confidentiality can never be undone, justifying a simple test for issuing injunctions, a defamation case that is won vindicates the injured party.

At the time, the law on injunctions was governed by two cases; Bonnard v Perryman and Cream Holdings Ltd v Banerjee and the Liverpool Post and Echo Ltd. Bonnard established that "The right of free speech is one which it is for the public interest that individuals should posses, and indeed, that they should exercise without impediment, so long as no wrongful act is done … Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions", telling courts that injunctions in libel cases should only be granted if there is "a real prospect of success" at trial.

Article 8 of the convention covers "the right to respect for private and family life", and during the passage of the Act through Parliament, elements of the press were concerned that this could affect their freedom of expression.

[7] In it, the court refused to extend the "more likely or not" test found in the Human Rights Act 1998 to cover defamation as well as breach of confidentiality (the subject of the Cream case).