Bindmans LLP have announced that an application for permission to appeal has been lodged with the Supreme Court by MLA, the performing artist whose autobiography has been injuncted worldwide following a widely criticised decision by the Court of Appeal.
In the case of OPO v MLA ( EWCA Civ 1277) the Court of Appeal relied on a tort – the intentional infliction of harm – which has only been used a handful of times since the 19th century, to prevent the artist from publishing his book, which deals with his art form and his recovery from the sexual abuse he suffered in his childhood and his consequential mental illness. It gives an important message of hope and openness to other victims.
However, it is claimed that the descriptions of the father’s past would, if he read it, cause psychiatric harm to the performer’s son who suffers from Aspergers and ADHD and lives in another country with his mother. Although books are occasionally banned by Governments around the world for their controversial content, this decision is the first time in living memory when the court has banned a book in a private law action.
MLA’s lawyer, Tamsin Allen of Bindmans LLP, said
“Our client is asking the Supreme Court to give permission to appeal the judgment on the basis that the Court of Appeal was wrong. He says this is a new and unjustified extension of the law which should not be used to restrain publication of a book which is not aimed at or intended to be read by the son and which is otherwise lawful and an important public interest work. He will ask the Supreme Court to consider the consequences for freedom of expression. According to the reasoning in the Court of Appeal’s judgment, a whistleblower could be banned from exposing political corruption to the public if it might cause psychiatric harm to one person. This decision is dangerous and should be overturned without delay.”
The decision has rightly generated considerable public disquiet. Freedom of expression campaigners have expressed grave concern about the use of this tort to prevent publication of a work which is generally in the public interest.
We had a post in which Dan Tench expressed “shock and disbelief” at the Court of Appeal. A number of prominent UK writers, including Sir Tom Stoppard and William Boyd, have signed a letter from English PEN protesting at the banning of the book.
MLA has asked the Supreme Court to expedite its decision on permission to appeal.
The full application to the Supreme Court can be read here.