Case Preview: OPO (by his litigation friend BHM) & Anor v MLA
19 Monday Jan 2015
The Supreme Court will hear an appeal later today and tomorrow relating to the tort in Wilkinson v Downton  QB 57 and the correct application of the Human Rights Act 1998, s 12(3) when granting an interim injunction. Permission to appeal was granted on 9 December and (quite exceptionally) the court ordered that the case should be heard on an expedited basis. Lords Neuberger, Clarke, Wilson, Toulson and Lady Hale will hear the appeal.
The case relates to the memoir of a well-known performing artist (MLA) which contains details of the sexual abuse he suffered at school and his subsequent mental health issues. MLA is the father of OPO, a child living abroad with his mother who suffers from attention deficit hyperactivity disorder, Asperger’s, dysgraphia and dyspraxia. The parties have been anonymised.
Prior to the book being published, it was contended on behalf of the child that publication of the details of the sexual abuse suffered by MLA and his mental health issues would, if made known to the child, have a catastrophic effect on his self-esteem and cause “enduring psychological harm”. An application was therefore brought on behalf of OPO for an interim injunction to restrain publication of the book.
At first instance, the child’s application was refused in a currently confidential judgment by Mr Justice Bean in the High Court . He found that there was no prospect of success on any of the causes of action put forward and refused permission to appeal. Subsequently, permission to appeal was granted by the Court of Appeal, and was then heard  by Lords Justice Jackson, McFarlane and Lady Justice Arden (who gave the lead judgment).
Three arguments were advanced on behalf of the child in support of the appeal. Firstly, it was asserted that publication of the book would constitute (the tort of) misuse of private information. This argument was rejected by the Court of Appeal as the private information in question pertains to the father rather than the son. Secondly, it was argued for the child that publication would amount to a negligent breach of a duty of care owed by the father to him. The Court of Appeal also rejected this argument, it being a well-established principle of the law of negligence (on public policy grounds) that it is not ‘fair, just and reasonable’ for the law to impose a duty of care on a parent in respect of its child. Thirdly and finally, it was argued on behalf of the child that publication of the book would amount to ‘intentional infliction of mental suffering’, which is the tort established in Wilkinson v Downton.
Wilkinson v Downton is a somewhat curious case which involved a practical joker falsely informing a woman that her husband had been involved in a road accident, following which she suffered from acute nervous shock. The case was decided at a time when damages for psychological harm could not be recovered in actions for negligence. Notably, it differs from the facts of the present case in two key respects. Firstly, the information provided to the woman was (maliciously and deliberately) false, whereas the information these proceedings are concerned with is true. Secondly, the statement in Wilkinson v Downton was made to the woman specifically rather than to the world at large (as would be so in this case). Notwithstanding these differences, the Court of Appeal allowed the child’s appeal and granted the injunction restraining publication of the book.
The father applied for permission to appeal to the Supreme Court, which was granted, and the case was ordered to be heard on an expedited basis.
The Supreme Court appeal
The first key issue for the Supreme Court to decide will be whether the tort in Wilkinson v Downton applies where the communication in question comprises (a) true statements (b) which are made to the world generally (as in the father’s book). The Court of Appeal’s affirmative answer to these questions represented a substantial development of the tort established in Wilkinson v Downton with potentially significant ramifications for freedom of expression. The Supreme Court now has the task of assessing whether those innovations were justified on these facts.
Secondly, the Court will look at whether “imputed” intention is enough to establish the tort in Wilkinson v Downton or whether it must be shown that there was an actual intention to cause harm (or subjective recklessness as to the risk).
Finally, the Court will assess the proper application of the Human Rights Act 1998, s 12(3), which requires that a court (when making an interim injunction restraining freedom of expression) must consider it “likely” that the Claimant would ultimately be successful at trial. In the case of Cream Holdings Ltd v Banjeree  UKHL 44, it was held that this requirement was essentially to be read as meaning “more likely than not”, but also that it could be relaxed in situations where it was thought that publication would have especially serious consequences.
It should also be noted that the Supreme Court has given permission for interveners to make written submissions in the appeal, namely three freedom of expression organisations, English Pen, Article 19 and Index on Censorship.
The appeal is close to the heart of UKSCBlog. A Matrix team, headed by UKSCBlog editor Hugh Tomlinson QC, is acting for MLA. Equally an Olswang team, headed by UKSCBlog editor Dan Tench, is acting for the Interveners. Dan’s posting on the Court of Appeal judgment (written before he was instructed by the Interveners) for Inforrm’s Blog is here.
A full case comment on the decision will be made available on this blog once judgment is handed down.
  EWHC 2468 (QB)