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OPO (Appellant) v MLA & Anor. (Respondents)
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Digest

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Whether the case at hand fell within the scope of Wilkinson v Downton and if not, what was the proper scope of the tort of intentionally causing physical or psychological harm.

The Supreme Court handed down judgment on 20th May in the appeal of James Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32. The respondent, the appellant's ex-wife, launched proceedings on behalf of their child to prevent the publication of an autobiography by the appellant in which he documented  in "vivid.... language" the sexual abuse he suffered as a child. The respondent believed that the release of the book and therefore revelation of the treatment his father had suffered could cause significant psychological harm to their already vulnerable child.

In their decision, Lady Hale and Lord Toulson (with whom Lord Clarke and Lord Wilson agreed) considered the scope of the tort to intentionally cause physical or psychological harm. recognised in Wilkinson v Downton [1897] 2 QB 57, and whether it is actionable to prevent a person publishing true information about himself. After much discussion, they considered that the Court of Appeal erred in regarding the tort as confined to the respondent.

The publication was of general (public) interest to a wider audience. Moreover the author had a freedom to report the truth (see Napier v Pressdram Ltd [2009] EWCA Civ 443, para 42) and the need to tell the world his story, which was justification in itself. Accordingly it was not within the scope of conduct element found in Wilkinson, that is "words or conduct directed towards the respondent for which there is no justification or reasonable excuse" and it should not be expanded to ban a publication of general interest. As to the mental element, Lady Hale and Lord Toulson found that the appellant did not have an actual requisite intention to cause severe distress resulting in recognisable illness (see "Option B" at para 83). 

Dissenting in part, Lord Neuberger approached the question in two stages. Namely that the respondent's claim had no prospect of success because publication would plainly not have given rise to a cause of action in his favour. Secondly that from a legal perspective the book's contents did not havce anything to do with the respondent. It was not necessary to decide the appeal on the grounds of public interest. It would be inappropriate to restrict freedom of expression by virtue of "a judge's assessment of the importance of the publication to the public or even to the writer", considering that the contents could be freely distributed through other means and in any case only refer in general and unobjectional terms ot the respondent. 

The appeal was allowed.


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