The Supreme Court handed down today its judgment in OPO v MLA ( UKSC 32), the case in which the Court of Appeal had – extraordinarily – granted an injunction to prevent the publication of a book solely on the ground that it might cause psychological harm to the author’s son. In a compelling and comprehensive judgment, the Supreme Court reversed the decision of the Court of Appeal and discharged the injunction.
The Court clarified the tort of intentionally inflicting mental suffering, gave a powerful reminder of the importance of freedom of expression, provided important guidance on the form of injunctive relief and abolished imputations of an intention by operation of a rule of law.
A summary of the subject matter of the case was set out in my Inforrm posting after the Court of Appeal decision which is here. Briefly, the case related to a book written by a man who we now know to be James Rhodes, a leading classical pianist. The book recounted in unflinching detail his truly appalling childhood experiences of sexual abuse at school, its devastating personal consequences for him and his redemption through music.
The action was brought on behalf of his son from a marriage now dissolved. The son suffered from a number of disorders and two psychologists said that the publication of the book revealing such details of his father would be likely to cause him psychological harm. The boy brought the action (through his litigation friend) seeking an injunction restraining the publication of the book.
An application for an interim injunction was unsuccessful at first instance but the Court of Appeal (Arden, Jackson and Macfarlane LJJ), granted the interim injunction on the basis that the publication of the book might constitute the tort of intentionally inflicting mental suffering. This is a tort established in a case beloved of textbook writers but rarely used in practice, Wilkinson v Downton ( QB 57). The use of this unusual tort to restrain the publication of a book was extremely controversial and inspired three groups dedicated to the freedom of expression, English PEN, Article 19 and Index on Censorship, to intervene as the case went to the Supreme Court.
The leading judgment at the Supreme Court was given jointly by Lady Hale and Lord Toulson. They carefully considered the historical context of the decision in Wilkinson v Downton. They stated that the tort must have three elements: a “conduct element”, a “mental element” and a “consequence element”. This case turned on the first and second of those, it being accepted that the “consequence required for liability is physical harm or recognised psychiatric illness” (although interestingly Lord Neuberger in a separate judgment – see below – suggested that “it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant’s statement”).
As regards the conduct element, this required words or conduct directed towards the claimant “for which there is no justification or reasonable excuse”. This, the Supreme Court considered, was where the Court of Appeal first fell into error, because the “book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation”. It is true that the book was dedicated to the son, but that did not mean that the son was intended to read it, at least not at this stage of his life. To consider the justification for the publication only by reference to the son:
“excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.”
The judgment continued:
“When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication.”
And then the judgment included this paean to freedom of expression:
“Freedom to report the truth is a basic right to which the law gives a very high level of protection. It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself.”
As regards the mental element for the tort, the judges first of all noted that the Court of Appeal simply imputed as a matter of law the necessary intention to cause harm on the author. This was in line with previous authority. But the Supreme Court held:
“Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle.”
So the necessary intention must be inferred from the facts in the particular case. And then the judges gave some useful clarification as to what that intention should be.
First, the intention need not be actually to cause the psychological illness which resulted (although such an illness is a necessary component of the tort under the consequence element), it was sufficient that the defendant intended to cause severe distress.
Second, the Court held that recklessness as to causing severe distress would not be sufficient to constitute the tort, an actual intention to cause severe distress was required.
In something of a coda, Lord Neuberger gave a concurring judgment. He said that the action had no prospect of success because once it was established (as the Court of Appeal had correctly held) that there was no duty of care owed in this instance by the father to the son “the book’s contents simply have nothing to do with the claimant, at least from a legal perspective”, the dedication of the book to the son, being of no legal significance.
He was also at pains to say that while many would regard the book to be in the public interest, that was not relevant to this case.
Finally, he identified five points relevant for deciding when a statement which causes a claimant distress should be actionable as follows:
- there must be circumstances in which such a tort should exist, it would not be right to abolish the cause of action entirely;
- the boundaries of the tort must be relatively narrow, given the importance of freedom of expression;
- the tort should be defined as clearly as possible so there is legal certainty;
- given “the almost literally infinite permutations of possible human interactions … no set of parameters can be devised which would cater for absolutely every possibility”; and
- “it would be wrong to express a concluded view, and to let the law develop in a characteristic common law way, namely on a case by case basis”.
As my colleague Anna Caddick notes elsewhere, both judgments referred to the technical difficulty of the injunction granted and gave further useful guidance.
The judgment is also notable for including substantial extracts from the book, perhaps the most startling and vivid prose to appear in a Supreme Court judgment. This material gives a strong insight into the power of the book and it is plain that the judges held it in high regard (although that was no part of their reasoning). The Court recognised that the book used “brutal language” and “dark descriptions” and confirmed previous authority that the “right to convey information carries with it a right to choose the language in which it is expressed”.
This is a powerful, authoritative and humane decision from a Supreme Court at the top of its game. Like all the best judgments, when one has finished reading it one concludes that the law could be only this, a welcome answer to the difficulties to which the decision from the Court of Appeal gave rise.
Dan Tench is a partner in the Litigation Department at Olswang LLP
Olswang acted for Interveners, English PEN, Article 19 and Index on Censorship, at the Supreme Court.