The Appeal in Bargain Busting Ltd v Shenzhen

Jane Lambert

Court of Appeal (Lord Justice Arnold, Lady Justice Elizabeth Laing and Lord Justice Warby) Bargain Busting Ltd v Shenzhen SKE Technology Co. Ltd [2026] EWCA Civ 532 (8 May 2026)

This was an appeal by Bargain Busting Ltd ("BBL") against an interim injunction restraining threats of trade mark infringement proceedings granted by Mr Justice Miles (as he then was) on 27 May 2025 on the application of Shenzhen SKE Technology Co Ltd ("SKE") for the reasons he gave in  Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd and others [2025] EWHC 1239 (Ch) (21 May 2025).  I discussed that judgment in Threats Actions - Bargain Busting v Shenzhen Technology on 29 May 2925.

Background

The claimant, BBL was the registered proprietor of UK trade marks UK00003235344 ("344") and UK00003534551 ("551"), which the defendant, SKE, challenged on the grounds of non-use and invalidity. BBL also applied to register CRYSTAL BAR as a trade mark under trade mark number UK00003786148 ("148"). SKE responded to BBL's threats by seeking an order under s.21C to prevent BBL from making further threats of proceedings against SKE's distributors and retailers. The claimant also sought information on the parties BBL had already threatened to sue. 

The application was heard by Mr Justice Miles on 30 April and 1 May 2025. He handed down judgment on 21 May 2025. In para [111] of his judgment, his lordship announced that he would grant an injunction against threatening further proceedings, though in narrower terms than BBL had sought.

Grounds of Appeal

BBL appealed on two grounds:

1. Mr Justice Miles had erred in law in imposing a requirement for likelihood of success under s.12 (3) of the Human Rights Act 1998 that was lower than "more likely than not"; and
2. His lordship had wrongly failed to take into account the fact that, if the threats in respect of 148 were justified, then the threats in respect of 344 or 551 would be of no consequence even if unjustified.

The Appeal

The appeal came on before Lord Justice Arnold, Lady Justice Elizabeth Laing and Lord Justice Warby on 28 April 2026.   They handed down judgment in Bargain Busting Ltd v Shenzhen SKE Technology Co. Ltd [2026] EWCA Civ 532 on 8 May 2026. Lord Justice Arnold delivered the lead judgment with which Lady Justice Elizabeth Laing and Lord Justice Warby agreed.

Ground 1

Lord Justice Arnold had noted at para [28] of his judgment that s.12  of the Human Rights Act 1998 applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.  S.12 (3) provides that no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

The learned lord justice said that the House of Lords had considered s.12 (3) in Cream Holdings Ltd v Bannerjee 17 BHRC 464, [2004] UKHRR 1071, [2004] 4 All ER 617, [2004] HRLR 39, [2004] UKHL 44, [2005] 1 AC 253, [2004] 3 WLR 918, [2005] EMLR 1, [2005] AC 253.  Lord Nicholls of Birkenhead said at para [22] of his speech:

"… Section 12 (3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12 (3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12 (3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."

Lord Justice Arnold summarised that passage as follows at para [36] of his judgment in Bargain Busting:

"It can be seen from this that Lord Nicholls laid down a general rule that the threshold to be applied under section 12 (3) is that the applicant must be more likely than not to succeed at trial. He identified two exceptions to that general rule, namely (i) where the potential adverse consequences of not granting an injunction are particularly grave and (ii) where a short-term injunction is needed to enable the court to hear and properly consider an application for longer-term interim relief."

His lordship acknowledged that there might be other exceptions as Lord Nicholls' language was inclusive.

He observed that s.12 (3) and Cream Holdings had been applied in the trade mark context in Boehringer Ingelheim Ltd v Vetplus Ltd [2007] HRLR 33, [2007] Bus LR 1456, [2007] BusLR 1456, [2007] ETMR 67, (2007) 97 BMLR 1, [2007] EWCA Civ 583, [2007] FSR 29, (2007) 30(8) IPD 30052.  He cited para [48] of Lord Justice Jacon's judgment in that case:

"The general 'threshold' which must be crossed by the claimant is that he will probably succeed at the trial. I do not see why that should not be the general rule for trade mark infringement in a comparative advertising case. Indeed there is every reason why it should. …"

Lord Justice Arnold observed that so far as counsel's researches had been able to discover, this was the first case in which the effect of s.12 (3) on an application for an interim injunction to restrain allegedly unjustified threats had arisen for consideration. He added: 

"Be that as it may, the principles set out in Cream Holdings and applied in Vetplus are equally applicable in this context."

He rejected SKE's argument that granting an interim injunction to restrain allegedly unjustified threats was only a limited interference with the respondent's rights under art 10 ECHR and therefore the application of the principles laid down in Cream Holdings should be qualified in this context on the ground that there was no support for it in Lord Nicholls's speech.   He also rejected its contention that applying these principles in this context without qualification would run counter to the general procedural consideration which has been recognised and applied since American Cyanamid Co v Ethicon Ltd that interim applications should not be permitted to turn into mini-trials.   The whole point of s.12 (3) is to require the courts to apply a merits threshold before granting interim relief that affects freedom of expression. A court hearing such an application must take a view as to which party is more likely to prevail at trial based on the available evidence and arguments.  There is nothing about an interim injunction to restrain allegedly unjustified threats which would prevent the application of this approach. No mini-trial was required in the present case. 

It followed that erred in not applying Lord Nicholls's general rule. Since he did not find that SKE's claims were more likely than not to succeed, and there was no respondent's notice contending that he should have, Mr Justice Miles had been wrong to grant the injunction.

Ground 2

Having found for BBL on Ground 1 the Court of Appeal did not have to consider Ground 2.

Disposal

The Court allowed the appeal and set aside the injunction.

Comment

In view of the number of years in which the Human Rights Act 1998 has been in force it is surprising that this is the first case s.12 (3) has been considered in the context of a threats action.  As the bar is raised from arguable case to more likely than not it may not make too much difference in practice.  Threats actions are a peculiarity (some would say anomaly) of IP litigation and they have ensnared more than one non-specialist practitioner over the years.   My article  Threats Actions - Bargain Busting v Shenzhen Technology of 29 May 2925 is a mini resource page on threats actions in that it links to several articles that I have written over the years.   I shall update it with a note that Mr Justice Miles's judgment was reversed on appeal and a link to this page.  Anybody wishing to discuss the case at first instance or the appeal may call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Further Reading

Jane Lambert   Threats Actions - Bargain Busting v Shenzhen Technology of 29 May 2925 NIPC Law