 The case first went before Fulford J in the Queen 's Bench Division of the High Court of Justice , with Fulford 's judgment delivered on 16 October 2004 . In it , he held that the High Court was bound to apply Bonnard v Perryman , but granted an injunction until such time as a more senior court could determine Bonnard 's status . The case then went to the Court of Appeal of England and Wales , where it was heard by May , Dyson and Brooke LJJ ; Brooke delivered a judgment for the entire court on 5 November 2004 . 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 ) . While Brooke noted that the Bonnard test was inflexible , he also considered the distinction between defamation and breach of confidentiality ; while " confidentiality , once breached , is lost for ever " , if a defamatory statement is taken to trial and the claimant wins , he or she is vindicated and suffers no lasting harm . As such , the Cream test should not be applied , because it would violate the delicate balance between the right to privacy and the freedom of the press . 
