It is perhaps unusual for the Supreme Court to be in a position to provide guidance on the appropriate terms of an interim injunction, but in an exceptionally useful and interesting judgment handed down today in MLA v OPO, the Supreme Court did exactly that.

This was an appeal against an interim injunction awarded by the Court of Appeal to prevent the publication of a book by the applicant’s father, the classical musician James Rhodes, which described his harrowing and vivid experiences of rape and sexual abuse suffered as a child and the relief he had consequently found through music. The injunction, whilst refused by Bean J at first instance, had been granted by the Court of Appeal on the basis of the well-known but little used tort of Wilkinson v Downton, because the book could cause psychological harm to the applicant minor.

The Supreme Court comprehensively reviewed the tort and its limitations, concluded that the action had no prospects of success and thus discharged the injunction. The details of the judgment are discussed by my colleague Dan Tench here. But the Court also considered the inadequacies of the interim injunction granted by the Court of Appeal. In this blog, I focus only on what the Court said in respect of the terms of the interim injunction, a matter of universal application.

The Court of Appeal had granted an interim injunction preventing the Defendants from making:

generally available to the public by any means all or any part of the information referred to in Confidential Schedule 2 to this Order (‘the information’) whether by publishing the particular extracts identified in Confidential Schedule 3 or by publishing any substantially similar words to like effect”.

Confidential Schedule 2 then read, in part:

The information or purported information that the respondents intended to publish in a book entitled ‘Instrumental’ … 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.” [emphasis added]

Arden LJ expanded upon the intended meaning of the word “graphic” in the above by saying that:

“…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.”

The problem therefore becomes clear: not only was the prohibited information described by reference to its substantive content but also by reference to the qualitative concept of being “graphic”, inherently a matter of impression and value- judgment. Indeed added to that, whether or not a piece of information was “graphic” was to be determined from the stand-point of a child. In total a seemingly impossible criterion to impose under threat of contempt.

The Supreme Court recognised the problem with the form of the injunction and emphasised that any injunction must be in terms sufficiently specific to “leave no uncertainty” about what the target is or is not permitted to do. This principle does not cause any astonishment but was plainly important to rehearse. The Supreme Court referred also to the dicta of Lord Nicholls in Attorney General v Punch Ltd [2002] UKHL 50 at paragraph 35, which are well worth keeping in mind:

“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.”

MLA (Appellant) v OPO (by his litigation friend BHM) and another (Respondents) [2015] UKSC 32

Olswang acted for the Interveners, English PEN, Article 19 and Index on Censorship, at the Supreme Court.

Post By Anna Caddick (14 Posts)

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