Full case report

Rhodes (previously “MLA”) v OPO

Reference [2015] UKSC 32
Court Supreme Court

Judge Lord Neuberger PSC, Lady Hale DPSC, Lord Clarke, Lord Wilson, Lord Toulson

Date of Judgment 20 May 2015


Summary

Elements of the tort of Wilkinson v Downton – interim injunction – article 10 – freedom of expression – whether Wilkinson v Downton should operate to prohibit a writer from telling a true autobiographical account of his upbringing which risks causing psychological harm to his son


Facts

MLA was a performing artist. OPO was a child and the son of MLA. STL was a commercial publisher. The father had written a semi-autobiographical book for publication in the UK and other jurisdictions. The book gave an account of the serious childhood sexual abuse suffered by the father over many years. He was traumatised by this, as well as suffering physically, and it has led him to have episodes of severe mental illness and incidents of self-harming. The book was an artistic and insightful piece of work containing striking prose. The father had already given many newspaper interviews referring to his abuse as a child.

The book was dedicated to his son. The son was born in the UK, but since his parents’ divorce now lives in another country with his mother. He suffers from significant disabilities: he has a diagnosis of a combination of ADHD (attention deficit hyperactivity disorder), Asperger’s syndrome, Dysgraphia and Dyspraxia. Evidence of two child psychologists suggested that the child would be at risk of serious psychological harm if he were exposed to the accounts given by the father in the book. The most recent report concluded that the book would be likely to exert a catastrophic effect on the child’s self-esteem and to cause him enduring psychological harm. That evidence was disputed by the father.

The child applied for an injunction to Bean J. He contended that publication of the book should be restrained on three bases: (1) that publication would represent misuse of private information; (2) that it would be a breach of the duty of care owed by the father to his son; and (3) that publication would amount to the deliberate infliction of emotional harm under the tort recognised in Wilkinson –v- Downton [1897] QB 57. The father and the publisher opposed the application, contending that none of the causes of action had any prospect of success; alternatively that the Claimant’s prospects of success were not sufficiently favourable to justify the grant of an injunction in accordance with s.12 Human Rights Act 1998 and that, in any event, the law that applied to any cause of action that the Claimant could establish would be that of the country in which he lived not the UK.

In a reserved judgment handed down in private, Bean J refused the injunction, holding that all three causes of action had no prospects of success. He therefore dismissed the application for an injunction and dismissed the entire claim. In light of his findings, he did not determine the issue of choice of law. Permission to appeal was refused by the Judge, but granted by the Court of Appeal. The Claimant appealed.

The Court of Appeal allowed the appeal from Bean J on the basis that the Child had sufficiently favourable prospects of suceeding under Wilkinson v Downton only to grant an interim injunction.

The Supreme Court gave the father permission to appeal.


Issue

1. The proper scope of the tort of Wilkinson v Downton

2. Whether the interim injunction granted by the Court of Appeal should continue


Held

Held, allowing the appeal. Lady Hale and Lord Toulson gave the lead judgment with whom Lords Wilson and Clarke agreed. Lord Neuberger with whom Lord Wilson agreed gave a concurring judgment.

1. The conduct in question was the publication of the book – a true autobiographical account – to the public at large. Such conduct was not within the scope of the conduct element of the tort. The publication to the public was not conduct directed towards OPO as required under the tort: [75]. Nor was the conduct without justification. What the father was proposing was to tell the truth, a basic right to which the law gives a very high level of protection. Vulnerable children must be protected as far as reasonably practicable from exposure to material which would harm them but the right way was not to expand the Wilkinson tort: [76]- [77]

2. The injunction granted by the CA sought to forbid publication not only by reference to the book’s substantive content but also by the descriptive quality of being ‘graphic’, which is a matter of impression. This meant that it was not framed in sufficiently clear and certain terms. It lacked the clarity and certainty which an injunction properly requires: [78]-[79], [99]-[100]

3. (obiter) the mental element for the Wilkinson tort should be that the defendant intended to cause physical harm or severe mental or emotional distress. Recklessness should not be included in the definition of the mental element: [83], [87], [112]-[113]

3. (per Lord Neuberger PSC), once the CA rightly upheld Bean J rejecting the child’s argument that the relationship gave rise to a duty of care on the part of the father which the publication of the book would breach that was the end of the matter from a legal perspective. The book’s contents had nothing to do with the child: [94]-[95]


Comment

The judgments will create much for the academics to consider and argue over. Less so for practitioners. As Lord Neuberger puts it at [119], ‘the narrow restrictions on the tort should ensure that it is rarely invoked anyway.‘ However, it will be cited in other media cases for what it reiterates in respect of the need for injunctions prohibiting what words can be be published to be clear, specific and certain.


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Instructing Solicitors

Aslan Charles Kansetta for OPO; Bindmans for MLA; Simons Muirhead for STL