Last week’s Court of Appeal decision in OPO v MLA ( EWCA Civ 1277) week is the most bewildering judgment for many years. A man who had “obtained a high degree of distinction in his chosen career” had written a book which covered among other things his childhood sexual abuse at school.
The book was described as bringing together these terrible experiences “in an artistic and insightful way” and to be in “striking prose” and, it was said, contained “an important message of encouragement to those who have suffered similar abuse to speak about their past”.
But the man had a son by a marriage now dissolved. That son lived abroad (in a country quaintly termed “Ruritania” in the judgment) with his mother. The son suffered from a combination of attention deficit hyperactivity disorder, Asperger’s, Dysgraphia and Dyspraxia. Two psychologists said that the publication of the book revealing such details of his father would be likely to “exert a catastrophic effect on [his] self-esteem and to cause him enduring psychological harm”.
So the boy brought the action (through his litigation friend) seeking an injunction restraining the publication of the book. An application for an injunction was refused by Mr Justice Bean at first instance. The boy appealed and the matter was heard by a panel of the Court of Appeal led by Lady Justice Arden.
The boy’s counsel argued (as he had at first instance) that an injunction should be granted on three grounds.
Firstly, that the book constituted a misuse of private information. But the book was about the father not the son, it was not the son’s information. For this reason this ground failed in the Court of Appeal as it had at first instance.
Secondly, that the publication of the book in terms that could be damaging to the boy was negligent, that is a breach of a duty of care owed by the father to the son. But the Court of Appeal accepted that there was clear authority that no such general legal duty of care is owed by a parent to a child.
That left the third ground, that the publication of the book would be contrary to the tort of intentionally inflicting mental suffering as originally established in Wilkinson v Downton  QB 57. Amazingly, this ground was sufficient for the boy to secure his injunction.
Wilkinson v Downton is a legal curiosity well known to legal students. In it, a man as a practical joke had told a woman that her husband had had a serious accident. She had responded badly to the information and had suffered nervous shock. She was entitled to recover compensation for the psychological damage. It appears to remain good law, albeit rather rarely used.
In order to apply the principle in Wilkinson v Downton to the circumstances concerning the boy, Arden LJ had to make three innovations.
Firstly, she held that the communication in question did not have to be false. In all previous cases when the principle had been applied, the communication which had caused the nervous shock had been false. But apparently that was not necessary.
Secondly, that the communication did not have to be stated directly to the claimant but it was sufficient that the relevant information was disseminated to the world at large, provided there was a risk that it would be received by the boy (he was said to be “computer savvy” and may read it via the Internet). Again, in all previous cases, the communication was directly made to the claimant. Arden LJ noted that the book was dedicated to the son and that parts were directed to him. That appears very different though to the communication actually being made directly to the boy.
Thirdly, the consideration as to whether the dissemination of the information in question was nonetheless justified was limited to whether it was justified “vis-a vis the particular claimant”. That seems far too narrow. Previous commentators had suggested that the tort was confined to “extreme and outrageous conduct”. Even if that is not the case, if the breadth of the principle in Wilkinson v Downton was to be extended to include communications which were not false, some consideration of whether the communications were justified in the wider context must surely be taken into account, not least having regard to Article 10. In this case one would have thought that the subject matter of the book would merit a high degree of protection, but that did not seem to matter at all.
There were two other important issues in the judgment.
Firstly, given this was an interim injunction affecting freedom of expression, section 12 of the Human Rights Act 1998 was in play. This required that the court must determine that it was “likely” that the Claimant would succeed at trial before interim relief could be granted.
But Arden LJ said that this did not mean that the boy had to be more likely than not to succeed (that is, the prospects of success were more than 50%) because, she said, “if publication is not restrained, then it will be impossible “to put the genie back in the bottle”” and potentially serious consequences for the boy may ensue. So this was a case in which the court was justified in applying a lower standard than “more likely than not”.
Secondly, since the boy did not live in the UK but in “Ruritania”, there was the question of the appropriate applicable law. One would assume that that was the law of “Ruritania”, given that was where the boy would be when he would read the material and potentially suffer the nervous shock. No evidence appears to have been adduced as to what the local law provided in this regard.
Arden LJ took two approaches to this. In the first place, she was prepared to proceed on the general presumption that foreign law was the same as UK law. This was even though the analysis of the substantive position was a rather esoteric interpretation of a rather abstruse principle which has found only limited application in other jurisdictions.
In the second place, Arden LJ held that it was “likely” that in any event the matter was “manifestly more closely connected with” the UK for the purposes of Article 4(3) of the Rome II Regulation given that “the Work was written here and will be published here” and “the threat to cause harm emanated from this jurisdiction”. Moreover the boy might be “in London when he comes across the material”. For that reason, English law could for these purposes supplant that of “Ruritania”.
There is a further difficulty inherent in the judgment but not addressed within it. It seems that even on the reasoning given, no legal wrong would arise unless both of two contingencies would occur. The first was that the boy would actually read the material. The second that he would suffer actual psychological damage from doing so. While, no doubt, no meaningful probability could be attributed to either contingency, it seems that neither could be considered to be a certainty.
This is much more than a question of remedy, as contingent issues in litigation usually are. Without both contingencies arising, there would be no psychological damage and without that damage there is simply no legal cause of action. Whilst an injunction can of course be granted where the claimant’s case is merely “arguable”, that is very different from saying that an injunction can be granted where the case is only possible. To grant an injunction in those circumstances risks restraining action which may turn out to be perfectly lawful. It would be like enjoining a person from given an entire speech simply because there was some chance that in the course of doing so he may disclose confidential information.
The judgment is perhaps best seen as simply a rogue decision which hopefully will be quickly put out of its misery by the Supreme Court. But if not, we have a precedent binding on the courts of first instance and the Court of Appeal which will cause all manner of difficulties.
Dan Tench is a partner in the Litigation Department at Olswang LLP