Full case report
OPO (a child by BHM his litigation friend) v MLA
Reference  EWCA Civ 1277
Court Court of Appeal
Judge Arden, Jackson & McFarlane LJJ
Date of Judgment 9 Oct 2014
Injunction application – misuse of private information – negligence – Wilkinson v Downton – psychiatric harm – jurisdiction
MLA was a performing artist. OPO was a child and the son of MLA and BHM, his litigation friend. 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  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.
(1) Did the Claimant have a viable cause of action?
(2) If so, should English law be applied or that of the country where the child lived?
(3) Should any injunction be granted, having regard to s.12 Human Rights Act 1998?
Allowing the appeal and granting an injunction to restrain publication, with a public domain provision:
(1) No claim could be brought for misuse of private information. The tort was only engaged by publication of information that related to the claimant. The book, although it featured the child prominently, did not threaten to misuse any of his private information. The information that was said to be likely to cause harm to the child all related to his father. Nor could a claim in negligence be maintained. Although there was a sufficient relationship of proximity between the son and father and the damage was foreseeable, the Court of Appeal held that it would not be fair, just or reasonable to impose a duty of care on a parent towards his child. However, the elements of the tort of Wilkinson –v- Downton were sufficiently made out. Liability for the tort is incurred if a defendant wilfully does an act calculated to cause psychiatric harm. Intention could be imputed to a defendant who disclaimed the intention to cause the relevant harm if that harm was likely to be caused and he carried on to do the relevant act. Although the father considered publication a responsible act he could not be heard to say that he did not intend the book to reach the child: the book was dedicated to him and parts of it were directed to him. The father had specifically recognised the vulnerability of the child to risk of harm caused by his learning of matters concerning his father’s past.
(2) English law would be applied. At the interim stage, the test was whether the child could show that the proposed publication of the book would be unlawful under the applicable law. The question of choice of law had to be determined in accordance with the Rome II Regulation, particularly Articles 4(1) and (3). Article 4(1) provided that the normal rule would be that the proper law would be the country in which the damage would occur. In terms of the Wilkinson v Downton tort that would be the country where the child lived. However, under Article 4(3) that usual rule could be displaced where it was “clear from all the circumstances of the case that the tort is manifestly more closely connected with a country other than that indicated by Article 4(1)”. The Defendants had contended that any reliance by the child on the evidential presumption that the foreign law was the same as English law should not be permitted, relying on Al-Misnad –v- Azzaman  EWHC 1783 (QB) at  and Belhaj –v- Straw  EWHC 2672 (QB) at . The Court held that choice of law had to be resolved according to the evidential rules of the forum. There was nothing wrong with the evidential presumption. In any event, the claim was manifestly more closely connected with the UK than the child’s home country. The strongest connections of any anticipated wrong to a place are likely to be those which relate to the acts which have already occurred. All of the acts in the present case had taken place in the jurisdiction of the Court.
(3) An injunction would be granted. Under s.12 Human Rights Act, the child had demonstrated sufficiently favourable prospects on the facts of establishing at trial that his claim under Wilkinson –v- Downton would be successful so as to justify the grant of an injunction pending trial. Cream Holdings –v- Banerjee  1 AC 253  applied. This was a case in which the Court is justified in applying a lower standard than more likely than not given the risk of serious harm to the child if the injunction were not granted.
In a rare reversal of a first instance judge’s refusal to grant an injunction restraining publication, the Court described the tort of deliberate infliction of harm recognised in Wilkinson –v- Downton as obscure and seldom used. Indeed, the arrival of the Protection from Harassment Act 1997 was regarded by many commentators as reducing the scope of the likely application of the tort yet further given the much easier thresholds to surmount for liability for harassment. Arden LJ gives a review of the development and application of the tort. She rejected the Defendants’ contention that the tort required the publication of false words. The tort required conduct that was unjustifiable in the circumstances. The necessary intention for the tort could be imputed to a defendant. A defendant would be taken to intend the harm by the combination of it being sufficiently likely that such harm would be suffered as a result of the defendant’s behaviour and his deliberately engaging on that behaviour: Wong –v- Parkside  EWCA Civ 1721;  3 All ER 932 applied.
The case is the first appellate application of the principle recognised in Cream Holdings  that the prospects of success need to be “sufficiently favourable” in order for an injunction to be granted in accordance with s.12 Human Rights Act 1998. This does not compel the Court to apply the ‘probability of success’ test mechanically. The Court is entitled to have regard to other factors particularly where, as here, the alleged adverse consequences of disclosure of information would be extremely serious.
The discussion of the choice of law issue is also likely to assist, particularly at the interim injunction stage. The Court found that the presumption as to foreign law, which had received some criticism from first instance judges, remained a legitimate rule of evidence.
Aslan Charles Kousetta LLP for the Appellant, Bindmans LLP for the First Respondent, Simons Muirhead & Burton for the Second Respondent
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.