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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> OPO v MLA & Anor [2014] EWCA Civ 1277 (09 October 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1277.html Cite as: [2014] WLR(D) 422, [2014] EWCA Civ 1277 |
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ON APPEAL FROM THE HIGH COURT
Queen's Bench Division
The Hon Mr Justice Bean
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE JACKSON
and
LORD JUSTICE McFARLANE
____________________
| OPO |
Appellant |
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| - and - |
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| MLA STL |
Respondents |
____________________
Hugh Tomlinson QC (instructed by Bindmans LLP) for the First Respondent and Jacob Dean (instructed by Simons Muirhead & Burton) for the Second Respondent
Hearing dates: 14-15 August 2014
____________________
Crown Copyright ©
Lady Justice Arden:
Threat of publication of allegedly harmful book
"I agree that [the child] should not be exposed to any press-related matter, therefore I will be very careful not to mention him in any interview/public related event for the time being and definitely not until he reaches in any case an appropriate age, where he will be able to understand and form his own judgements...."
"And Upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect on the child's well-being."
"49. I accept that knowing what happened to me could upset [OPO], or embarrass him, but I do not accept that it will be harmful if dealt with in the right way. I feel that [OPO] would be proud to have a father who has come through difficult times and succeeded despite those times, who speaks out against injustice and, in doing so, helps others. I recognise that [OPO] may already be very well aware of troubling parts of my background and I remain available to him to talk about it in a way which makes sense to him. When I speak to him about this I will do so in a sensitive, age-appropriate and loving way and I am eager to seek additional guidance from an appropriate expert so that [his parents] approach this matter in a consistent way. This is a matter of appropriate co-parenting and healthy communication with [his mother] – things I have tried to do consistently since our divorce. If this cannot be done by agreement then I believe the proper forum for resolving disputes is [the Ruritanian court.]"
"is an important and valuable piece of work, written by someone who has found a way through difficulties associated with childhood abuse and mental health problems. [The publisher] believes that the author has much to offer to the those currently wrestling with such issues, as has already been demonstrated by his writings and broadcast experiences, and that the [Work] is a serious contribution to public discussion about them."
OPO relies on three legal wrongs
i) he will misuse private information about himself that will interfere with the son's private life;
ii) he will be liable in negligence to the son;
iii) he will cause intentional harm and thus become liable under the well-known but seldom used principle in Wilkinson v Downton [1897] QB 57 (which makes it a wrong in certain circumstances intentionally to inflict mental suffering).
Judge rejects claimant's claim
"12. The factual evidence is that it is most unlikely that the claimant would come into possession of the book as such: but that he is a bright 11 year old who does Google searches on his father which would lead him to reviews of the book, extracts from it or references to its contents in (for example) his father's Wikipedia entry. In a witness statement, filed during the hearing before me, the mother states that the claimant found a reference to his father having been abused as a child and asked her what that meant. The mother has blocked certain sites on the claimant's computer but of course will not have the same degree of control over what he might view at school or elsewhere."
"…[P]arents are daily making decisions with regard to their children's future and it seems to me that it would be wholly inappropriate that those decisions, even if they could be shown to be wrong, should be ones which give rise to a liability for damages."
"34.Wilkinson v Downton was analysed by Hale LJ in Wong in terms which Mr Nicklin submits are fully satisfied in the present case:
'For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not 'mean' it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.'
35. However, even a judgment of Baroness Hale is not to be treated as a statute. I do not read it as creating or approving a tort consisting of doing any deliberate act which is likely to cause an individual emotional harm amounting to recognisable psychiatric injury. If such a tort had existed at common law, much of the modern statutory law of harassment would have been unnecessary. Moreover, liability under Wilkinson v Downton does not depend on any pre-existing relationship such as parenthood nor any pre-existing duty of care. If the defendants are to be liable for psychiatric injury to the claimant, why not to any other vulnerable individual who reads the book or extracts from it? The floodgates which Mr Nicklin invites me to open seem to be very wide indeed. I decline to open them. As for parental liability in tort, the policy arguments set out by the Court of Appeal in Barrett v Enfield LBC are also in my judgment applicable mutatis mutandis to Wilkinson v Downton. "
Roadmap for this judgment and overall conclusions
No cause of action for MPI
Negligence
"Parents owe a common law duty of care to their children to protect them from physical injury in a variety of circumstances. Three obvious examples are: (a) as drivers of cars; (b) as occupiers of premises; or (c) as supervisors of young children. None of these duties is confined to parents; and there is no authority for a general common law duty of parents, enforceable by injunction or compensable in damages, to protect their children from emotional or psychological injury. In the Court of Appeal in Barrett v Enfield LBC ([1998] QB 367 at 377) Lord Woolf MR said (in a passage approved by Lord Hutton in the House of Lords [2001] 2 AC 550 at 587):
'…..[P]arents are daily making decisions with regard to their children's future and it seems to me that it would be wholly inappropriate that those decisions, even if they could be shown to be wrong, should be ones which give rise to a liability for damages.'" (judgment,[29])
"[34] Children play by themselves or with other children in a wide variety of circumstances. There is a dearth of case precedent that deals with the duty of care owed by parents to their own or other children when they are playing together. It is impossible to preclude all risk that, when playing together, children may injure themselves or each other, and minor injuries must be commonplace. It is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so. Some circumstances or activities may, however, involve an unacceptable risk to children unless they are subject to supervision, or even constant surveillance. Adults who expose children to such circumstances or activities are likely to be held responsible for ensuring that they are subject to such supervision or surveillance as they know, or ought to know, is necessary to restrict the risk to an acceptable level."
- Recital K
- para 49 of MLA's witness statement
- dedication of the Work to the son
- the direction of parts of the Work to the son
- MLA's recognition that at some point the son will read the Work.
Liability for intentional harm under the Wilkinson v Downton principle
"False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable."
"For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not 'mean' it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour. This view is consistent with that taken by Dillon LJ in Khorasandjian v Bush [1993] 3 All ER 669 at 676, [1993] QB 727 at 735–736:
'…false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause and actually causing physical injury to the person to whom they are uttered are actionable: see the judgment of Wright J in Wilkinson v Downton [1897] 2 QB 57 at 59, [1895–9] All ER Rep 267 at 269 cited by Bankes LJ in Janvier v Sweeney [1919] 2 KB 316 at 321–322, [1918–19] All ER Rep 1056 at 1059. There was a wilful false statement, or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical injury, viz illness of the nature of nervous shock.'"
"Although these cases [Wilkinson v Downton and Janvier v Sweeney] were concerned with words, the same principle would obviously apply to the intentional infliction of physical harm by other indirect means, such as digging a pit into which it is intended that another should fall."
"[78] The learned editor of the Law Reports report of Janvier v Sweeney synthesised the effect of the judgments thus:
"False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable."
This statement is important, because in Khorasandjian v Bush [1993] QB 727, [1993] 3 All ER 669, at p 735G of the former report the majority in this court accepted it as a correct expression of the doctrine of Wilkinson v Downton and Janvier v Sweeney; and would have granted quia timet relief against such words that could be expected, if continued, to result in a recognisable psychiatric illness: which is how the majority, at p 376C, considered that "nervous shock" should now be understood. These observations were obiter, in view of the majority's placing of liability on the basis of private nuisance; but they were fully considered and, because of their obiter nature have, as Mr Wilby QC urged upon us, escaped the condemnation by the House of Lords in Hunter v Canary Wharf [1997] AC 655, [1997] 2 All ER 426 of the nuisance aspects of Khorasandjian.
[79] I respectfully consider that the headnote in Janvier v Sweeney, adopted in Khorasandjian, comes as close as it is possible to do to a general statement of the rule in Wilkinson v Downton. If that is not correct, then the rule must be limited to the statement in the latter part of Wright J's observations cited in para 13 above, that the defendant's act was so clearly likely to produce a result of the kind that occurred that an intention to produce it should be imputed to him: that is to say, objective recklessness….
[80] It follows that I cannot agree with the formulation adopted in Salmond & Heuston on Torts (21st edition, 1996), at p 215 from para 46 of the Restatement, Torts, 2d, that
"one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it"
No doubt the outrageous nature of the defendant's conduct was not far from the minds of the judges in Wilkinson v Downton and, in particular, Janvier v Sweeney. However, moral condemnation is not enough. What is required by the Khorasandjian formulation is knowledge that the words are likely to cause, that is to say subjective recklessness as to the causation of, physical injury in the sense of recognisable psychiatric illness. Intention or recklessness merely as to severe emotional distress, from which bodily harm happens in fact to result, is not enough." (emphasis added)
"44 I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v Downton Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney [1919] 2 KB 316, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Comrs case 13 App Cas 222 prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.
45 If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment [2002] QB 1334, 1350, paras 50-51, might have been inclined to accept such a principle…"
Section 12 of the HRA and other limits on the grant of any injunction
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code….
Is it "likely" that OPO would establish that publication should not be allowed (section 12(3) question)?
i) As to Recital K, this is about not talking to the child, or exposing the child's name, but that does not mean that neither parent will publish his or her own past. His mother does not make any contractual claim. Mr Tomlinson submits that Recital K is not a clear waiver of MLA's Article 10 right, as required by Strasbourg case law.
ii) As to the 2009 emails, the parents talked about keeping the son's name out of the publication. OPO's name is not now in the Work as a pseudonym is used. The Work is really directed at MLA's own background.
iii) The previous pseudonymous publication is neither here nor there. It did not deal with redemption because it does not deal with MLA's musical career. MLA is prepared to speak out about his past.
iv) It would be difficult for MLA to show that there is not a grave risk of harm. He submits that the appellant must demonstrate:
a) That he is more likely than not to have a cause of action.
b) That it is more likely than not some or all of the information comes to OPO's child's attention. The judge found that the son is not likely to get hold of the Work (judgment, [12]).
c) That it is more likely than not that whatever information comes to him will be damaging. The mere possibility of harm is not enough. Nor is speculative risk. He may only become aware of certain parts of the Work. OPO would need a credit card to buy it himself online. He also makes the point that the Work is an adult work and is unlikely to come to the child's attention. Certainly the mother does not intend to give it to him.
d) Mr Tomlinson is critical of the quality of the evidence. He also submits that there is no expert evidence as to what will happen if OPO reads the Work in its present form which is different from that when the first expert saw it. There is no expert evidence as to what would happen if OPO saw parts only of the Work.
e) That it is more likely than not that the trial court would exercise its discretion in favour of a permanent injunction. The court has to consider whether there is sufficient reason to grant an injunction. Mr Tomlinson emphasises that there is no intention to publish in Ruritania.
i) To be actionable on the Wilkinson v Downton principle, the interference must be unjustified in some objective sense. It is not enough that there is damage. Given the value of public debate, it cannot be said that there was such unjustified conduct here.
ii) The allegedly harmful material must be kept in proportion. It forms a small part of the Work, which is about redemption. It is no more graphic than other works on this nature. Mr Dean submits that there will not be a focus on the language in reviews. The Work is not targeted at children. Its purpose is to give a voice to the sexually abused, many of whom are too ashamed to come forward. If pseudonymous, the Work is deprived of all the purpose and power.
iii) He also relies on the financial information as to likely losses given in the publisher's evidence.
iv) With any commercial publication, restrictions should be imposed very carefully. Business moves on. Publication is thrown into doubt, though it is not said that it will not be published.
v) Other members of the public also have Article 10 rights.
vi) Mr Dean takes no point on the cross-undertaking in damages which has been offered.
Choice of law - Rome II Regulation
"1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur….
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question."
i) the fact that this is a case of "forum shopping" (that is, choosing a jurisdiction not because it is the closest but on account of some advantage it offers) because the Ruritanian court refused to restrain the publication of the Work; and
ii) the fact that the parents agreed that issues about OPO's upbringing would be dealt with in Ruritania.
Furthermore, on Mr Dean's submission, the advantage of using English law is a juridical advantage which is not relevant for Article 4(3) purposes since it does not demonstrate the relevant connection of the wrong to the jurisdiction.
i) The fact that the Work is published here does not mean manifestly closer connection with here. It is proposed to publish the Work in every continent of the world. There will be foreign language editions. In any event, because of the internet, the contents of the Work would be published by the internet anywhere in the world.
ii) It is not enough that both defendants are here or that decisions about publication are here.
iii) There is no contract here between either of the respondents and the appellant
"(c) It is not consonant with the overriding objective of the Civil Procedure Rules, in a case where the 1995 Act applies, for a party either to decline to plead the relevant provisions of the applicable law or to rely on a presumption that a foreign law is the same as English law. Such an approach is evasive. There may of course be an issue as to which particular law applies, but that is a different matter. The 'parochial' approach, which 'presupposes that it is inherently just for the rules of the English domestic law of tort to be indiscriminately applied regardless of the foreign character of the circumstances and the parties', is precisely the mischief which the Law Commission sought to remedy, and which was remedied by the 1995 Act, see per Brooke LJ (with whom May and Rix LJJ agreed) in R (Al-Jedda) v Secretary of State of Defence [2007] QB 621 at [103], in a judgment which was upheld by the House of Lords ([2008] 1 AC 332)."
"(a) Although it is open to criticism and subject to exceptions, a court of first instance cannot ignore the rule that, in the absence of evidence, foreign law is presumed to be the same as English law. "
Miscellaneous points
Conclusions
Lord Justice Jackson :
i) The book contains graphic descriptions of the abuse which the father has suffered and his incidents of self-harm.
ii) Those passages are likely to be quoted by reviewers or newspapers who serialise the book.
iii) On the uncontradicted expert evidence those passages are likely to cause enduring psychological harm to the claimant by reason of his Aspergers syndrome and other vulnerabilities.
iv) The book is dedicated to the claimant and is in part specifically addressed to him: see page 258.
v) The father has full knowledge of the risks posed to the claimant. Indeed because of the claimant's vulnerabilities, the father has previously subscribed to Recital K to the order setting out the arrangements for the claimant's care:
"K and upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental affect on the child's wellbeing."
Lord Justice McFarlane