KB-2025-003193 - [2025] EWHC 2642 (KB)

The interim injunctive relief I am asked to grant on the basis of the libel action is as follows:

“7.

Until further order of this Court, the Defendants, whether by themselves or their agents or otherwise shall not, whether on social media, by broadcast, by written publication or otherwise, publish or cause to be published any statement, image or other material which:

(a)

alleges that the Claimant:

(i)

Created the “@Mr.FakeFlex” account on Instagram.

(ii)

Ran the “@Mr.FakeFlex” account on Instagram.

(iii)

Contributed content to the “@Mr.FakeFlex” account on Instagram.

(iv)

Forged documents, fabricated evidence, or created fake messages or content of any kind in connection with the “@Mr.FakeFlex” account on Instagram, or generally.

(v)

Engaged in theft and/or fraud and/or online scams.

(vi)

Engaged in blackmail or extortion.

(vii)

Is a stalker and/or engaged in stalking of the First Defendant or of any other person.

For the avoidance of doubt, the prohibitions set out above means that the Defendants are prohibited from continuing to publish, among other things, the following videos:

(i)

A video published on 23 August 2025 on YouTube on the FZG account entitled “[CYD] Says He Has A Stalker That’s Making False Screenshots….He Sent Me All His Proof”;

(ii)

A video published on 25 August 2025 on YouTube on the Billythegoat Live account entitled “[CYD] Calls Billy and CRASHES OUT on STREAM”;

(iii)

A video published on 25 August 2025 on YouTube on the Billythegoat Live account entitled “Discussing the [CYD] Interview with TrapLoreRoss, [FZG] and Walkz”;

(iv)

A video published on 23 August 2025 on Twitch on the Billythegoat Live account entitled “[CYD’s] LAWYER CALLS BILLY ON LIVESTREAM!!!!”. ”

I explored the possibility of undertakings to the court at the hearing, and explained to the second defendant the serious consequences in the event of any breach. The position turned out to be as follows:

All the relief claimed under paragraph 7(a) of the draft order is relief that engages the defendants’ Article 10 right to freedom of expression under the European Convention on Human Rights, as enacted into domestic law by the Human Rights Act 1998. Therefore, section 12 of the Human Rights Act 1998 applies. Section 12 provides, so far as material (and with emphasis added):

“12 Freedom of expression.

(1)

This section 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.

(…)

(3)

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.

(4)

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)

the extent to which—

(i)

the material has, or is about to, become available to the public; or

(ii)

it is, or would be, in the public interest for the material to be published.”

In Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the House of Lords held that the purpose of section 12(3) was to buttress the protection afforded to freedom of speech at the interim stage by setting a higher threshold than the guideline of “a serious question to be tried” or a “real prospect” of success at trial which is applied in non-Convention cases by American Cyanamid Co v Ethicon Ltd [2975] AC 396 (para 15 of Cream). It therefore propounded (in para 22) the following test:

“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.”

The claimant’s Leading Counsel indicated that, even if the trial were to be expedited, it could not be listed before March 2026, given the time needed for pleadings, disclosure and witness statements. If granted, therefore, this restriction on freedom of expression would not be for a brief period of days or weeks. It would for a period of months.

The potential adverse consequences of disclosure are mitigated by the fact that the allegations in question are well and truly in the public domain regardless of whether the three defendants remain completely silent about them between now and trial. This is a feature of the claimant’s own evidence. The videos and other materials were discussed on platforms and social media over which the defendants have no control (that is, platforms and social media other than the first and third defendants’ own accounts). The harm the claimant fears is not directly from any defendant but from members of the public who have already seen or become aware of the material in question and been incensed by it. These unidentified third parties are not going to calm down just because no defendant adds to what has already been said. It is not my impression from the evidence, and given what the second defendant said to me at the hearing about herself and her son the first defendant, that any defendant proposes to say anything else, even if not restrained, except perhaps in order to defend themselves from any future allegations by the claimant. The claimant has not offered to restrict her own freedom of speech in any way.

The test I must apply in this case is the section 12(3) test of whether at trial the claimant “is likely to establish that publication should not be allowed”. I do not think that it is “likely”, applying the considerations required by the judgment of the House of Lords in Cream. Having considered the now-voluminous evidence filed on both sides in this case, I can say that there are two sides to this case. I cannot say the claimant’s case is more likely than not to succeed. But I do not regard it as likely to succeed even to a less rigorous standard than that. The evidence is all over the place. The credibility of the parties will be critical, and is presently entirely at large. The case is, as it seems to me now, at best finely balanced, and, given the inherent probabilities, if anything tilted against the claimant. There is quite a credible case that she was either behind or at least substantially contributed material to the Mr Fake Flex account. If that is established, her credibility on everything else will be severely compromised, and she has evidential difficulties in respect of the other matters too. The defendants (or, at least, the first and second defendants, whose views were being reported by the third defendant) are determined to prove the substantial truth of what is said or reported in the videos, and all the other social media posting complained of is based on the video content. I make no prediction, but I do think the defendants have a good chance of success, based upon what I have seen.

That is sufficient to dispose of the application so far as the libel case and paragraph 7(a) of the draft order is concerned.

However, the claimant also faces the hurdle imposed by the rule in Bonnard v Perryman [1891] 2 Ch 269. Per Warby J in LJY v Persons Unknown [2018] EMLR 19 at para 41:

“The threshold test of likely success is not always the right one to apply. In defamation, the rule has for a long while been that the Court will not grant an injunction if there appears to be any real prospect that the claim might fail (the rule in Bonnard v Perryman , or "the defamation rule"). In Holley v Smyth [1998] QB 727 (CA) the defamation rule was held to preclude the grant of an injunction to restrain an alleged libel, even though the claimant asserted not only that the allegations were false but also that the defendant's motive for the threatened publication was blackmail. Because the claimant could not satisfy the court that the allegations were plainly untrue the Court decided, by a majority, that the injunction should be discharged.”

None of the allegations identified by claimant as the basis for the case sketched out in the Claim Form are plainly untrue. I say that having examined both the transcripts and other summaries underlying the claimant’s characterisation of what is said, and the evidence filed on both sides in respect of the substantial truth of what was said. On the contrary, there is a real possibility that the essential truth of what was said by or ostensibly on behalf of the defendants in the publications complained of will be proved at trial.

I recognise that, as Warby J said in LJY at para 45:

“It has never been enough, for this purpose, for a defendant merely to assert the truth, or a belief in the truth, of the allegation which it threatens or intends to publish. Some credible basis for the assertion has to be put forward.”

My assessment of what is likely is not based on a bare assertion or belief. It is based on the evidence I have seen and the submissions I have heard.

I will not make the orders in paragraph 7(a) of the draft order or any of its sub-paragraphs (i) to (vii).

The undertakings offered by the second defendant in relation to paras 7(a)(i), (ii), (v) and (vi) of the draft order no longer align with the substantive relief claimed in the action, following service of the draft Particulars of Claim (see para 47 above). Undertakings in relation to para 7(a)(v) (theft and/or fraud and/or online scams) and para 7(a)(vi) (blackmail or extortion) are no longer appropriate and should not be included in the order I make. That leaves only the undertakings she has offered in relation to the orders sought in paras 7(a)(i) – (iv) (set out at para 48 above), which do correspond at least to some extent to the recently pleaded case. They may be included in the order if she is still willing to give them, and a reference to the informal undertakings in the same terms from CYD can also be included, although they were not formal undertakings given at the hearing to the court.