The availability of exemplary damages for breaches of privacy was not determined by the majority, with Lord Mance simply indicating that the availability of substantial or even exemplary damages for invasion of privacy would not be decisive of the question of whether to grant an injunction restraining publication. – Does this go against the American Test? Does it also agree with the ruling in the Double Glazing Glasgow test?
A further criticism of the Court of Appeal’s approach was that, having determined that the PJS was likely to establish at trial that publication constituted a tortious invasion of privacy, discharging the injunction deprived him of a practical and effective remedy and undermined the purpose of any trial.
Lord Mance recognised that although the European Court of Human Rights in Mosley v United Kingdom had held that damages provide an adequate remedy for violation of art.8 rights, there were circumstances in which the only way to protect such rights satisfactorily were by the grant of an injunction. As any form of damages, however assessed, would be inadequate to remedy the invasion of privacy which would ensue from publication in the English media, it was necessary for the restriction to remain in place. Unlike a claim for defamation in which damage caused by publication can be redressed by a finding that the statement was false, a claim based on an invasion of privacy cannot be similarly cured.
Lifting the injunction would therefore undermine the purpose of any trial as the relevant issues would be prejudged and rendered irrelevant despite there being no pressing need for publication or public interest in the private information.