Court of Appeal blocks publication of autobiography and resurrects the tort of deliberate infliction of harm

The Court of Appeal in OPO (a child by BHM his litigation friend) v MLA [2014] EWCA Civ 1277 has overturned a decision of the High Court and granted an injunction to restrain the publication of a semi-autobiographical book by a well-known performer.

A book by written MLA (anonymised for the purpose of these proceedings) contained details, amongst other things, of how he had suffered severe mental illness, been the victim of sexual abuse as a child and self-harmed, in part, as a consequence of that abuse.  OPO (MLA’s son) is a child who suffers from Asperger’s syndrome, Attention Deficit Hyperactivity Disorder and Dyspraxia.  The proceedings were brought on his behalf by a litigation friend, his Mother (referred to as BHM).  Evidence was produced to suggest that OPO would suffer psychological harm from the publication of the book.  OPO applied for an interim injunction to restrain the publishing of the book on the basis that: (1) the publication would represent a misuse of private information about MLA and that would interfere with private life of OPO; (2) that MLA would be liable in negligence to OPO; and (3) that the publication would cause intentional harm and thus, MLA will become liable under the historic decision in Wilkinson v Downton [1897] 2 QB 7, the tort of intentionally inflicting mental shock. 

Mr Justice Bean, at first instance, dismissed the application for the interim injunction and, further, dismissed the entire claim on the basis that the three causes of action bought by the Claimant had no real prospect of success.  Permission to appeal was granted by the Court of Appeal and the Claimant appealed. 

On appeal, Lady Justice Arden dealt with each of the initial basis for the application in turn.  Firstly, no cause of action for misuse of private information could be ensued as the use was not OPO’s information; the book was about MLA and therefore this, failed on appeal.  Secondly, applying Barrett v Enfield LBC [1999] UKHL 25, Lady Justice Arden found that it would not be fair, just or reasonable to impose a duty of care on MLA (a father) towards OPO (a child), therefore, negligence also failed.  The third cause of action (the tort of intentionally inflicting mental shock), however, was arguably made out.  Ardren LJ states:-

“In relation to liability under Wilkinson v Downton I consider that OPO has demonstrated that if his allegations are made out at trial all the elements of this wrong are made out.”

The rule under Wilkinson says that a party incurs liability for intentional acts that cause psychiatric harm.  The Court held that the conduct by the Defendant would most likely amount to harm to the Claimant and therefore it is assumed that the effects on the Claimant were intended.  This rarely used tort was applied to OPO and the following matters were addressed.  Firstly, that the tort applied even though the communication was true.  Previous case law seemed to suggest that the offending communication to a claimant had to be false.  Lady Justice Arden puts this matter to bed at paragraph 65 where she says:-

“in my judgment, it is likely that the wrong can be committed even though there are no false words.  In Wong, Hale LJ held that:  ‘Although these cases … were concerned with words, the same principle would obviously apply to the intentional infliction of physical harm by other direct means, such as digging a pit into which it is intended that another should fall.’” 

In the present case, there were reports by OPO’s psychologists that suggested that the publication of the book would be likely to “exert a catastrophic effect on OPO’s self-esteem and to cause him enduring psychological harm.”  Therefore, with this knowledge, MLA would be responsible for this infliction of mental harm under Wilkinson regardless whether the communication, in this instance his book, was true or false.

Secondly, it had previously been thought that the communication had to be made directly to a claimant, this was not so in the present case.  The book was scheduled to be distributed to the world at large, although notably not in the OPO’s home country of ‘Ruritania’ (a pseudonym given by the Court to protect the identity of OPO).  Arden LJ deemed it enough that the book was dedicated to OPO and that parts of the book were directed to him, the communication did not need to be made directly to OPO. 

Finally, the Court must determine whether MLA has acted in a way which he knew to be unjustifiable and either intended to cause harm to OPO or acted with a reckless disregard as to whether harm would be caused.  Arden LJ referred to an agreed term in their divorce to “use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have detrimental effect on the child’s well-being”:-

“In the present case, the answer to the point that OPO has to show that MLA’s threat to publish the work lacks justification is that the act need only be unjustified in the sense that that the defendant was not entitled to do it vis-a-vis the particular claimant.  The defendant may be perfectly entitled to dig holes in his garden in any location he chooses to dig them in but not (at least without warning) if they fall within the area he has already agreed to allow the claimant to walk across to take a short cut.  Here MLA has accepted a responsibility to use his best endeavours to ensure that OPO is protected from harmful information.  That in my judgment is sufficient to mean that there is no justification for his words.  For the purposes of showing that MLA’s actions would lack justification in this context, it is not necessary to show that OPO would have a right of action based on Recital K, any more than the claimant in Wilkinson v Downton had to show that the practical joke gave her right to bring proceedings.

Further, applying Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, the Court held that intent will be imputed where a defendant deliberately continues engaging in conduct which is likely to cause harm.

Two other issues were mentioned in the judgment.  Firstly, whether English law should be applied and secondly, the consideration of Section 12 Human Rights Act 1998 (‘HRA’). 

The Rome II Regulation applies in situations involving conflicting laws.  The son lives in ‘Ruritania’ and the father, England.  Article 4(1) of The Rome II Regulation suggests that the governing law should be that of ‘Ruritania’ as that is the law of the country in which the damage would occur, that is to say, the country in which OPO would suffer the tort.  However, this is overridden by Article 4(3) where “it is clear from all the circumstances of the case that the tort is more manifestly connected with a country other than indicated by Article 4(1).”  As the work was written and intended to be published in England, the circumstances suggest that the tort is more manifestly connected with England.  The chance of OPO accessing the material is also higher in England, as the material was not scheduled to be distributed in ‘Ruritania’.

As this was an application which interfered with the Defendant’s freedom of expression, the Court was required to consider section 12(3) HRA that, “no such relief is to be granted so as to restrain publication before trial unless the Court is satisfied that the applicant is likely to establish that publication should not be allowed.”  The Court considered the ‘likely’ element of this section and after applying Cream Holdings v Banerjee [2004] UKHL 44 concluded that the Court would be justified in applying a lower standard than “more likely than not”  as to whether the case would succeed at trial.  Arden LJ remarked that “if the publication is not restrained, then it will be impossible ‘to put the genie back in the bottle’ if OPO succeeds in showing that there are parts of the Work [sic] that are seriously damaging to him.”  It was concluded that section 12 HRA was satisfied in this case.

The resurrection of this historic tort in OPO has the potential to open floodgates for similar claims.  The Court of Appeal has set a precedent which may allow others to restrict the publication of material in which they see could potentially cause them mental harm or distress.