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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> OPO v MLA & Anor [2014] EWCA Civ 1277 (29 October 2014)
Cite as: [2014] EMLR 4, [2014] EWCA Civ 1277, [2014] WLR(D) 422

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This judgment is confidential to the parties and their legal representatives and accordingly it may not be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved.

Neutral Citation Number: [2014] EWCA Civ 1277
Case No: A2/2014/2442

Queen's Bench Division
The Hon Mr Justice Bean

[2014] EWHC 2468 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -



Matthew Nicklin QC (instructed by Aslan Charles Kousetta LLP) for the Appellant
Hugh Tomlinson QC (instructed by Bindmans LLP) for the First Respondent and Jacob Dean (instructed by Simons Muirhead & Burton) for the Second Respondent



Crown Copyright ©

    RULING on submissions filed pursuant to the order of the Court dated 8 October 2014

    Lady Justice Arden:

  1. This is the judgment of the Court. It is handed down in private and we direct that it is to become public only if this Court or the High Court by order so permits.
  2. Further to the order made on 8 October 2014, this Court has to determine whether certain text sought to be injuncted should remain in Confidential Schedule 3 to that Order. We are grateful for the composite table comprising the defendant's objections, the claimant's response and the defendant's reply. We will refer to the extracts by reference to their page number in the first column.
  3. It is important to recall the purpose for which we are deciding this question. The Court has decided that an interim injunction should be granted so that the issue of whether the Work involves the infliction of intentional emotional harm on the claimant can be decided. In those circumstances, we have to interpret the terms of the order so as to achieve its purpose, which is the protection of the claimant in the meantime. In early September, the Court gave directions for Confidential Schedule 3 to be completed in order to create a situation of certainty. It was not intended to deprive the claimant of any relief to which he was properly entitled.
  4. The starting point is the information referred to in confidential Schedule 2. This description was provided by the parties to the Court and reads in material part as follows;
  5. "(1) The information or purported information that the Respondents intended to publish in a book entitled "Instrumental" ("the Book") (extracts of which are particularised in Confidential Schedule 3) which give graphic accounts of the First Defendant's account of sexual abuse he suffered as a child; his suicidal thoughts and attempts; his history of and treatment for mental illness and incidents of self-harming; his thoughts about killing the Appellant; his fears that the Appellant would also be a victim of sexual abuse and linking this account to the Appellant.
    (2) Any information liable to or which might lead to the identification of the Appellant (whether directly or indirectly) as the subject of the proceedings or the material referred to above."
  6. The information which may not be published from the Work is in every case "a graphic account". The graphic account must relate to the defendant's account of:
  7. a) sexual abuse he suffered as a child or his suicidal thoughts or attempts or
    b) his history of and treatment for mental illness and incidents of self-harming or
    c) his thoughts about killing the appellant or
    d) his fears that the appellant would be a victim of sexual abuse and linking this account to the appellant.
  8. We take the word "graphic" in this context to mean "vividly descriptive". In judging what is vividly descriptive, we have borne in mind that the person to be protected is a vulnerable child. In those circumstances, we consider that what should be injuncted is that which we consider to be seriously liable to being understood by a child as vividly descriptive so as to be disturbing. We have regard to the evidence referred to in the judgments.
  9. In our judgment in following this approach, we are satisfied that all of the passages identified by the defendant should be within Confidential Schedule 3.
  10. It is not possible in the scope of this short ruling to go into every aspect of every statement quoted on the 28 pages of schedule. However, we will give some reasons in outline to indicate how we have applied the principles we have identified.
  11. Having reached our conclusions, we have considered the question of prejudice to the defendant. As (1) we have ordered that the trial be expedited, (2) the defendant is protected by a cross-undertaking in damages, and (3) the statements in question are a small part only of the Work, we are satisfied that the order is proportionate.
  12. We are also satisfied that (as explained in the judgments) the order will still meet the requirements of Section 12 of the Human Rights 1998.
  13. Lord Justice Jackson

  14. I agree.
  15. Lord Justice McFarlane

  16. I also agree.

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