Case Comment: Rhodes v OPO (by his litigation friend BHM) & Anor  UKSC 32
20 Wednesday May 2015
The Supreme Court has given judgment today on the proper scope of the tort of intentionally causing physical or psychological harm. In doing so the Court restated that the freedom to report the truth is a basic right to which the law gives a very high level of protection.
The tort of intentionally causing physical or psychological harm was first established in 1897 in the case of Wilkinson v Downton. Mr Downton told Mrs Wilkinson (the wife of his pub landlord) that her husband had fractured his legs and had sent for help to get home. She suffered severe shock despite no previously known predisposition to this condition. Mrs Wilkinson was awarded damages on the basis that: (i) she had a legal right to personal safety; (ii) Mr Downton had committed a wilful act; (iii) that act was “calculated” to cause physical harm to Mrs Wilkinson; (iv) there was no justification for the act; and (v) although there was no desire to cause the harm, the act was imputed in law as malicious.
In the case of Rhodes v OPO, the Supreme Court considered the scope of this tort and whether it could ever be used to prevent a person from publishing true information about themselves.
The case related to a book written by classical pianist, writer and television film maker James Rhodes (the defendant and appellant). The book includes vivid autobiographical accounts (substantial parts of which are repeated in the judgment) of the sexual abuse Rhodes experienced as a child and his resulting depression, self-harm and suicide attempts.
The claim was brought against Rhodes by his son (who remains anonymous), by his litigation friend (initially his mother and latterly his godfather). There was expert evidence that the publication of the book would be likely to cause the son psychological harm.
An application was made on behalf of the child for an injunction prohibiting publication of the book without the deletion of substantial extracts. The application was refused at first instance and the proceedings were struck out in a private judgment by Bean J. However, the decision was successfully appealed to the Court of Appeal.
In a leading judgment by Lady Justice Arden, the Court of Appeal found there was no cause of action in negligence or privacy but granted an interim injunction on the basis that the publication of the book may constitute the intentional infliction of mental suffering under Wilkinson v Downton principles. The injunction restrained the publication of “graphic accounts” of James Rhodes’ account of certain experiences, including his sexual abuse and history of mental illness.
Three freedom of expression organisations (English PEN, Article 19 and Index on Censorship) intervened in James Rhodes’ Supreme Court appeal.
Supreme Court decision
The Supreme Court, in a leading judgment from Lady Hale and Lord Toulson and a supplementary judgment from Lord Neuberger, discharged the injunction and reversed the decision of the Court of Appeal.
The Supreme Court decision deals with two principal interlocking issues: the correct scope of the tort of intentionally causing psychological harm and the role of freedom of expression in justifying acts which may cause harm.
There are three key elements required for the tort of intentionally causing psychological harm:
- A “conduct element”. This requires words or conduct to be directed towards the claimant for which there is no justification. The question of justification in this case was whether there was a “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 Court of Appeal had not applied the correct test because it had considered only whether the publication was justified vis-à-vis the son, rather than vis-à-vis the full potential readership of the book. The justification of the publication of the book on the basis of free speech is considered separately below.
- A “mental element”. The defendant need not intend to cause the psychological harm which resulted, it is sufficient if the defendant intended to cause severe distress. The Supreme Court has now made clear that intention for these purposes is actual intention inferred from the facts in the particular case. Recklessness is not sufficient. Previous authority had held that an intention could be imputed as a matter of law so that even if a defendant did not intend to cause such harm, an intention could be imputed to him if that was the likely consequence. However, the Supreme Court found that the “imputation of an intention by operation of a rule of law … has no proper role in the modern law of tort”. James Rhodes did not have the necessary intention to cause severe distress to his son.
- A “consequence element”. It was accepted by the parties that physical harm or recognised psychiatric illness was the required consequence. (Lord Neuberger in fact suggested in what in this regard was a dissenting view 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 restriction on freedom of speech, the Supreme Court noted that the Court of Appeal’s injunction was novel in two respects. Firstly, it banned material that was not deceptive or intimidatory. Secondly, it was directed at the form of language rather than the substance of the material. In this context, the Supreme Court issued a reminder of the importance of freedom of speech and the protection that is afforded to it by the law. In relation to the publication of true autobiographical material that was not abusive it was said that it was “difficult to envisage any circumstances in which… [it] 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 itself”. In relation to an injunction relating to the form of language, the Court of Appeal was criticised for taking “editorial control over the manner in which the appellant’s story is expressed”. This builds on the cases of Campbell v MGN Ltd in the House of Lords and In re Guardian News and Media Ltd in the Supreme Court, that the right to convey information to the public includes the right to choose the language in which it is conveyed. The publication of the book was on any view, the Court considered, entirely justified.
The Supreme Court objected to the “descriptive quality” of the injunction granted by the Court of Appeal (in particular the use of the term “graphic”). A reminder has been issued that injunctions “must be expressed in terms which are clear and certain”.
In this decision the Supreme Court has brought the tort first established in Wilkinson v Downton into the modern day, clarifying the necessary elements of the tort and closing the door on an out-dated concept of imputed intention in law. The case will also no doubt provide a boost to freedom of expression campaigners.
Olswang LLP acted for the Interveners, English PEN, Article 19 and Index on Censorship, at the Supreme Court.