TORT — Cause of action — Intentionally causing harm — Claim seeking to restrain publication of

information in book by father of 11-year-old claimant describing sexual abuse suffered by father

in childhood and its consequences — Expert evidence that claimant’s reading of book likely to

cause him psychological harm — Interim injunction granted prohibiting publication of

“graphic” accounts of abuse and its consequences —  Whether conduct and mental elements of

tort made out — Whether publication justified — Whether injunction properly granted

O (A Child) v Rhodes and another (English PEN and others intervening)

[2015] UKSC 32; [2015] WLR (D) 227

SC:  Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Clarke of

Stone-cum-Ebony, Lord Wilson, Lord Toulson JJSC:  20 May 2015

Freedom to report the truth was a basic right to which the law gave a very high level of

protection and it was difficult to envisage any circumstances in which speech which was not

deceptive, threatening or possibly abusive could give rise to liability in tort for intentionally

causing physical or psychological harm.

The Supreme Court so held in allowing an appeal by the first defendant, James Rhodes, a

well known pianist, against the decision of the Court of Appeal (Arden, Jackson and McFarlane

LJJ) [2014] EWCA Civ 1277 (i) to overturn the dismissal by Bean J [2014] EWHC 2468 (QB)

of an application by the claimant, OPO (his 11-year-old son, suing by his litigation friend BHM),

for an interim injunction to prohibit the publication of a book by the first defendant which was

claimed to be likely to cause psychological harm to the claimant, who was psychologically

vulnerable, because it contained graphic accounts of the sexual abuse suffered by the first
defendant as a child at school and its effects, and (ii) to grant the interim injunction sought,

pending the trial of the action against the first defendant and the second defendant publishers,

Canongate Books Ltde .

BARONESS OF RICHMOND HALE DPSC and LORD TOULSON JSC (with whom

LORD CLARKE OF STONE-CUM-EBONY JJSC and LORD WILSON JJSC agreed said

that the order made by the Court of Appeal for an interim injunction was novel in two respects.

The material which the father was banned from publishing was not deceptive or intimidatory but

autobiographical; and the ban was principally directed, not to the substance of the

autobiographical material, but to the vivid form of language used to communicate it. The appeal

therefore raised important questions about freedom of speech and about the nature and limits of

liability under Wilkinson v Downton [1897] 2 QB 57. Wilkinson v Downton recognised that

wilful infringement of the right to personal safety was a tort. It had three elements: a conduct

element, a mental element and a consequence element. The conduct element required words or

conduct directed towards the claimant for which there was no justification or reasonable excuse.

The Court of Appeal had treated the publication of the book as conduct directed towards the

claimant and considered that the question of justification had therefore to be judged vis-à-vis

him. In that respect it had erred. The book was for a wide audience and the question of

justification had to be considered accordingly, not in relation to the claimant in isolation. The

Court of Appeal had held that there could be no justification for the publication if it was likely to

cause psychiatric harm to the claimant. That approach excluded consideration of the wider

question of justification based on the father’s legitimate interest in telling his story to the world

at large in the way in which he wished to tell it, and the corresponding interest of the public in

hearing his story. When those factors were taken into account, as they had to be, the only proper
conclusion was that there was every justification for the publication. Freedom to report the truth

was a basic right to which the law gave a very high level of protection. It was difficult to

envisage any circumstances in which speech which was 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 was justification in itself. That was not to say that the right of

disclosure was absolute, for a person might owe a duty to treat information as private or

confidential. But there was no general law prohibiting the publication of facts which would cause

distress to another, even if that were the person’s intention. A right to convey information to the

public carried with it a right to choose the language in which it was expressed in order to convey

the information most effectively. The problem with the form of the injunction was that it defined

the information which it was forbidden to publish by the descriptive quality of being “graphic”.

What was sufficiently “graphic” to fall within the ban was a matter of impression. The

amplification of “graphic” as meaning “seriously liable to being understood by a child as vividly

descriptive so as to be disturbing” similarly lacked the clarity and certainty which an injunction

properly required.

The conclusion that the publication of the book was not within the scope of the conduct

element of the tort was enough to decide the case. However, the issue of the mental element

required for the tort had been argued and it was right to address it. The Court of Appeal found

that the necessary intention could be imputed to the first defendant since he was aware of the

psychiatric evidence about the harm which the claimant would be likely to suffer if he read some

of the contents of the book. The court could not be criticised for doing so, since it had been

bound by previous decisions which upheld that approach, in particular, Janvier v Sweeney [1919]

2 KB 316 and Wong v Parkside Health NHS Trust [2003] 3 All ER 932. There was a critical
difference, not always recognised in the authorities, between imputing the existence of an

intention as a matter of law and inferring the existence of an intention as a matter of fact.

Imputation of an intention by operation of a rule of law was a vestige of a previous age and had

no proper role in the modern law of tort. The doctrine had been created by the courts and it was

high time to declare its demise. There was no basis for supposing that the father had an actual

intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

Accordingly, there was no arguable case that the publication of the book would constitute the

requisite conduct element of the tort or that the first defendant had the requisite mental element.

LORD NEUBERGER OF ABBOTSBURY PSC gave a concurring judgment.

Appearances: Hugh Tomlinson QC, Sara Mansoori and Edward Craven (instructed by

Bindmans LLP) for the first defendant; Antony White QC and Jacob Dean (instructed by Simons

Muirhead & Burton) for the second defendant; Matthew Nicklin QC and Adam Speker

(instructed by Aslan Charles Kousetta) for the claimant; Adrienne Page QC and Can Yeginsu

(instructed by Olswang LLP) for English PEN, Article 19 and Index on Censorship, intervening.

Reported by: Jill Sutherland, Barrister.

© 2017. The Incorporated Council of Law Reporting for England and Wales.
R H O D E S V O P O A N D A N O T H E R : S C 2 0 M AY 2 0 1 5

May 16, 2017 admin 0 Children , Media , Torts - Other ,

References: [2015] 2 WLR 137, [2015] UKSC 32, [2016] AC 219, [2015] EMLR 20, [2015]

HRLR 11, [2015] WLR(D) 227, [2015] 4 All ER 1, UKSC 2014/0251

Links: Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary

Coram: Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson,

Lord Toulson

Ratio: The mother sought to prevent a father from publishing a book about his life. It was to

contain passages she said may cause psychological harm to their 12 year old son. Mother and son

lived in the USA and the family court here had no jurisdiction to grant orders protecting the

child’s welfare. Instead, these proceedings were brought in his name, originally by his mother

and now by his godfather as his litigation friend, alleging that publication would constitute a tort

against him.

Held: The appeal was allowed, and the original order striking out the claim was restored, clearly

failing to meet all but one of th erequirements. ‘there is plainly a powerful case for saying that, in
relation to the instant tort, liability for distressing statements, where intent to cause distress is an

essential ingredient, it should be enough for the claimant to establish that he suffered significant

distress as a result of the defendant’s statement. It is not entirely easy to see why, if an intention

to cause the claimant significant distress is an ingredient of the tort and is enough to establish the

tort in principle, the claimant should have to establish that he suffered something more serious

than significant distress before he can recover any compensation. Further, the narrow restrictions

on the tort should ensure that it is rarely invoked anyway.’

Jurisdiction: England and Wales

This case cites:

 Cited – Wilkinson v Downton ([1897] 2 QB 57, Bailii, [1897] EWHC 1 (QB))

Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife

Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her.

He told her, falsely, that her husband had been involved in an accident and . .

 Cited – Wainwright and another v Home Office HL (House of Lords, [2003] UKHL 53,

Bailii, Times 20-Oct-03, [2003] 3 WLR 1137, 2004] 2 AC 406)

The claimant and her son sought to visit her other son in Leeds Prison. He was suspected

of involvement in drugs, and therefore she was subjected to strip searches. There was no

statutory support for the search. The son’s penis had been touched . .

 Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and

Others SC (Bailii, [2010] UKSC 1, Times, Bailii, SC, SC Summ, UKSC 2009/0016,

Bailii Summary, [2010] 2 WLR 325, WLRD, [2010] WLR (D) 13, [2010] EMLR 15,

[2010] 2 All ER 799, [2010] UKHRR 181, [2010] HRLR 14, [2010] 2 AC 697)

Proceedings had been brought to challenge the validity of Orders in Council which had
 frozen the assets of the claimants in those proceedings. Ancillary orders were made and

confirmed requiring them not to be identified. As the cases came to the . .

 Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL (Bailii, [2004]

UKHL 22, Times 10-May-04, House of Lords, [2004] 2 WLR 1232, [2004] 2 AC 457,

[2004] UKHRR 648, [2004] EMLR 15, 16 BHRC 500, [2004] HRLR 24, [2004] 2 All

ER 995)

The claimant appealed against the denial of her claim that the defendant had infringed her

right to respect for her private life. She was a model who had proclaimed publicly that

she did not take drugs, but the defendant had published a story . .

 Cited – Cream Holdings Limited and others v Banerjee and others HL (House of Lords,

Bailii, [2004] UKHL 44, [2004] 3 WLR 918, [2005] 1 AC 253, [2004] 4 All ER 617, 17

BHRC 464, [2004] UKHRR 1071, [2004] HRLR 39, [2005] EMLR 1)

On her dismissal from the claimant company, Ms Banerjee took confidential papers

revealing misconduct to the local newspaper, which published some. The claimant sought

an injunction to prevent any further publication. The defendants argued that the . .

 At First Instance – OPO v MLA and Another QBD (Bailii, [2014] EWHC 2468 (QB))

A boy now sought an interim injunction to restrain his father, the defendant classical

musician, from publishing his autobiography which mentioned him. The book would say

that the father had suffered sexual abuse as a child at school.

Held: . .

 Cited – Janvier v Sweeney ([1919] 2 KB 316)

During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair
 and corresponded with her German lover who was interned as an enemy alien on the Isle

of Man. Sweeney was a private detective who wanted secretly to obtain some . .

 Cited – McLoughlin v O’Brian HL ([1983] 1 AC 410, [1982] 2 All ER 298, Bailii,

[1982] UKHL 3, [1982] 2 WLR 982)

The plaintiff was the mother of a child who died in an horrific accident, in which her

husband and two other children were also injured. She was at home at the time of the

accident, but went to the hospital immediately when she had heard what had . .

 Cited – Khorasandjian v Bush CA (Gazette 21-Apr-93, Independent 17-Mar-93, [1993]

Fam Law 679, [1993] 3 WLR 476, [1993] QB 727, [1993] 3 All ER 669, Bailii, [1993]

EWCA Civ 18)

The plaintiff was an eighteen year old girl who had had a friendship with the defendant,

aged 28. The friendship broke down and the plaintiff said she would have no more to do

with him, but the defendant did not accept this. There were many . .

 Cited – Belhaj v Straw ([2013] EWHC 2672 (QB))

Where Article 4 applies, a party must bring forward evidence on foreign law and cannot

simply rely on a presumption that in the absence of evidence foreign law should be

assumed to be the same as English law.

Simon J said: ‘ It is not consonant . .

 Cited – Bromage And Another v Prosser (Commonlii, [1825] EngR 42, (1825) 4 B & C

247, (1825) 107 ER 1051)

Bayley J distinguished ‘malice in law’, inferred from the defendant’s intentional

interference with the plaintiff’s rights, from ‘malice in fact’ and Malice in common

acceptation of the term means ill-will against a person, but in its legal sense it . .
 Cited – Regina v Martin CCCR ((1881) 8 QBD 54)

The defendant was accused of unlawful conduct in causing panic at a theatre (by turning

off the lights and barring the doors) in the course of which a number of people were

injured by trampling as they stampeded down a stairway. His conduct was . .

 Cited – The Capital and Counties Bank Limited v George Henty and Sons HL ((1882) 7

App Cas 741)

The defendant wrote to their customers saying ‘Henty and Sons hereby give notice that

they will not receive in payment cheques drawn on any of the branches of the Capital and

Counties Bank.’ The contents of the circular became known and there was a . .

 Cited – Mogul Steamship Company Limited v McGregor Gow and Co ((1888) 20 QBD

544)

Ship owners formed themselves into an association to protect their trading interests which

then caused damage to rival ship owners. The plaintiffs complained about being kept out

of the conference of shipowners trading between China and London.

 Cited – Mayor of Bradford v Pickles HL ([1895] AC 587, Bailii, [1895] UKHL 1)

The plaintiffs sought an injunction to prevent the defendant interfering with the supply of

water to the city. He would have done so entirely by actions on his own land.

Held: The plaintiffs could have no property in the water until it came on . .

 Cited – Allen v Flood HL ([1898] AC 1)

The defendant, on behalf of a group of ironworkers, persuaded their employers in

Milwall to stop employing the plaintiff shipwrights. There was no breach of contract. The

plaintiffs alleged that this conduct gave rise to liability in tort on the . .
 Not good law – Director of Public Prosecutions v Smith HL ([1960] 3 All ER 161, [1960]

3 WLR 546, [1961] AC 290)

The defendant tried to avoid arrest and killed a policeman by driving off with the

policeman clinging to the car.

Held: (1) The defendant committed murder because death or grievous bodily harm was

foreseen by him as a ‘likely’ result of his...

 Cited – Allsop v Allsop ((1860) 29 LJ (Ex) 315, [1860] EngR 661, Commonlii, (1860) 5

H & N 534, (1860) 157 ER 1292)

Complaint was made of illness allegedly caused by a slanderous imputation of unchastity

to a married woman. The woman heard the slander at third hand. It was held that the

woman could not claim special damages for her illness in an action for...

 Cited – Lynch v Knight HL ((1861) 9 HLC 577, [1861] EngR 822, Commonlii, (1861) 11

ER 854)

Lord Wensleydale said: ‘Mental pain or anxiety the law cannot value, and does not

pretend to redress, when the unlawful act complained of causes that alone; though where

material damage occurs, and is connected with it, it is impossible a jury, in . .

 Cited – Victorian Railway Commissioners v Coultas PC ((1888) 13 App Cas 222, Bailii,

[1888] UKPC 3)

(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a

railway line as a train approached. There was no collision, but the plaintiff sought

damages for physical and mental injuries from shock.

Held: The...
 Cited – Pugh v London, Brighton and South Coast Railway Co CA ([1896] 2 QB 248)

The plaintiff signalman saw that there was something wrong one of the carriages of a

train approaching at full speed so that the train was in danger. He leant from the window

of his signal-box and waved a red flag so that the driver might stop the…

 Cited – Dulieu v White and Sons KBD ([1901] 2 KB 669)

A pregnant barmaid suffered nervous shock causing her to give premature birth as a

result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal

Green from the roadway. The defendant pleaded that the damages claimed were...

 Cited – Stevenson v Basham ([1922] NZLR 225)

(New Zealand) The defendant made a threat to the plaintiff’s husband inside the house

that she and her husband were occupying to burn it down, the threat being overheard by

her when she was in a bedroom where she was lying and when she was pregnant . .

 Cited – Hambrook v Stokes Brothers CA ([1925] 1 KB 141)

The defendant’s employee left a lorry at the top of a steep narrow street unattended, with

the engine running and without having taken proper steps to secure it. The lorry ran

violently down the hill. The plaintiff’s wife had been walking up the...

 Cited – Bunyan v Jordan ((1937) 57 CLR 1, [1937] HCA 5, Austlii, [1937] ALR 204)

(High Court of Australia) The plaintiff sought damages having been put to severe fright

by a shot fired by her employer, the defendant. . .

 Cited – Rahemtulla v Vanfed Credit Union ([1984] 3 WWR 296)

(British Columbia Supreme Court) The plaintiff had been harassed at work, falsely

accused of theft in threatening circumstances and summarily dismissed without proper

cause in a humiliating fashion. The defendant submitted that to be liable for...

 Cited – Bradley v Wingnut Films Ltd ([1993] 1 NZLR 415)

(New Zealand)...

 Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL ([1964] AC 465, [1963] 2

All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101,

Bailii)

The appellants were advertising agents. They were liable themselves for advertising

space taken for a client, and had sought a financial reference from the defendant bankers

to the client. The reference was negligent, but the bankers denied any...

 Cited – Wong v Parkside Health NHS Trust and Another CA (Times 07-Dec-01, Gazette

10-Jan-02, Bailii, [2001] EWCA Civ 1721, [2003] 3 All ER 932)

The claimant had sued her former employer for post-traumatic stress resulting from

alleged harassment at her place of work. The claimant appealed against an order refusing

damages. The court had held that outside the 1997 Act which was not in force…

 Cited – Her Majesty’s Attorney General v Punch Limited and another HL ([2003] 1 All

ER 289, [2003] HRLR 14, [2003] EMLR 7, House of Lords, Times 13-Dec-02, Bailii,

[2002] UKHL 50, [2002] UKHL 43, [2003] 2 WLR 49, [2003] 1 AC 1046)

A former MI5 agent, Mr Shayler, was to be prosecuted under the Official Secrets Act,

and an injunction against publication was granted. The respondent published further

works by Mr Shayler, and now appealed a finding that it had acted in contempt of . .

 Cited – Regina v G and R HL (House of Lords, [2003] UKHL 50, Bailii, Times 17-Oct-

03, Gazette 13-Nov-03, [2003] 3 WLR 1060, [2004] 1 AC 1034, Bailii, (2003) 167 JP

621, (2003) 167 JPN 955, [2004] 1 Cr App R 21, [2003] 4 All ER 765)

The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie
 bin, expecting the fire to go out. In fact substantial damage was caused. The House was

asked whether a conviction was proper under the section where the...

 Cited – High Parklane Consulting Inc v Lewis (2007 CanLII 410, Canlii)

(Ontario – Superior Court of Justice)...

 Cited – Napier and Another v Pressdram Ltd CA (Bailii, [2009] EWCA Civ 443, Times

02-Jun-09, [2009] EMLR 21, [2010] 1 WLR 934)

The claimant solicitors appealed against the refusal to grant them an injunction to prevent

the publication of the outcome of a complaint against them to the Law society, and of the

Ombudsman’s report. They said that the material remained . .

(This list may be incomplete)

This case is cited by:

 Cited – Bains and Others v Moore and Others QBD (Bailii, [2017] EWHC 242 (QB))

The claimant anti-asbestos campaigners complained that the defendant investigators had

infringed their various rights of privacy. They now sought discovery to support the claim.

Held: the contents of the witness statements do show that it is . .

(This list may be incomplete)

Last Update: 16 May 2017

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