James Rhodes v OPO (by his litigation friend BHM) and another [2015]

In James Rhodes (Appellant) v OPO (by his litigation friend BHM) and another (Respondents) [2015] UKSC 32 this matter came before the Supreme Court following the decision by the Court of Appeal to grant an injunction. The action had been brought on behalf of the author’s son who lived in the United States with the author’s ex-wife, to stop the publication of a book written by his Father, as it would cause his son psychological harm.

The Court of Appeal had considered the case of Wilkinson v Downton (1897) and how it applied to the circumstances. The tort of intentionally inflicting mental suffering was established in that case. It involved a man informing a woman, as a practical joke, that her husband had been in a serious accident, the result of being told this left the woman in deep shock.

It was found that she was entitled to compensation for the damage psychologically caused to her. The Court of Appeal, with reference to Wilkinson v Downton, found this justified an injunction being granted. The use of the principle established by that case to stop the book being published was very controversial.

The Supreme Court Judges Lady Hale and Lord Toulson gave the leading judgment with which Lord Clarke and Lord Wilson agreed. They carefully examined the circumstances and how the decision in Wilkinson v Downton was arrived at and considered that:

“In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness.”

Lady Hale and Lord Toulson then defined the conduct element which they considered

“requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse”.

They noted that this could lead to interference with the right to freedom of speech and considered that the Court of Appeal had made an error in regarding the publication of that book as conduct towards the Claimant whereas it had been directed towards a larger audience,

“the question of justification has to be considered accordingly, not in relation to the claimant in isolation”.

They continued that although the book dedication was to the son, the author did not intend that he should read the book at such a young age.

They further considered that giving justification to the publication by only referring to the son excluded the justification of the author from recounting his story to the wider world as he would have liked to recount it and the interest it would generate from those people who would wish to hear that story. They continued that by taking everything into account, it followed that the publication of the book was justified.

“Freedom to report the truth is a basic right to which the law gives a very high level of protection” and that “The right to report the truth is justification in itself”.

The Judges then looked closely at the second issue in this case being the mental element where they held:

“Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle.”

The Judges on reviewing all aspects of this element concluded that the Father did not have any intention of causing psychiatric, mental or emotional harm to his son.

They further concluded that the book publication would not constitute the two elements of conduct and mental that Lady Hale and Lord Toulson had identified from their consideration of the historic case of Wilkinson v Downton as being necessary for the tort to be proven. Neither element could be found to be present.

Both Judges allowed the appeal and the original order of Judge Bean, when he dismissed the application on behalf of the son for an interim injunction and held that the son had no cause of action against the Father or publishers, should be reinstated.

Lord Neuberger with whom Lord Wilson agreed, also gave his agreement to the appeal being allowed for the reasons set out by Lady Hale and Lord Toulson. He further added his own remarks because of the importance of the issues raised.

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