OPO v MLA: Interim injunction granted by the Court of Appeal under principle in Wilkinson v Downton

Iona Millership

MLA is a “talented performing artist” who suffered many years of sexual abuse at school which traumatised him and led to years of severe mental illness. He has authored a semi-autobiographical book which described the past abuse and the illnesses he has suffered as a result. The Court of Appeal described his book as “striking prose. . . [containing] an important message of encouragement to those who have suffered similar abuse to speak about their past“.

OPO is MLA’s 11-year old son, who has been diagnosed with a combination of ADHD, Asperger’s, Dysgraphia and Dyspraxia. Two child psychologists have suggested that publication of details of MLA’s sexual abuse in the book would be likely to put OPO at risk of serious risk of psychological damage. OPO therefore applied through his litigation friend (his mother) for an injunction to restrain publication of the book on the basis that its publication would amount to one or more of the following torts:

  1. A misuse of MLA’s private information which would interfere with OPO’s private life.
  2. A breach of a duty of care owed by the father to his son.
  3. The deliberate infliction of emotional harm under the tort recognised in Wilkinson v Downton [1897] QB 57.

At first instance, Mr Justice Bean refused to grant an injunction on the basis that none of these causes of action had a reasonable prospect of success.

The Court of Appeal reversed this decision and granted an interim injunction on the basis that the elements of the tort of Wilkinson v Downton were made out. Wilkinson concerned a lady who suffered nervous shock as a result of a practical joke in which she was falsely told that her husband had died. The tort was developed to allow her to sue for compensation in relation to psychological damage suffered as a result of the intentional behaviour of the defendant. The tort is seldom used and usually applied in circumstances where the defendant’s behaviour is unconscionable. It successful application here is surprising and represents a significant broadening in the scope of the tort.

For interim injunctions affecting freedom of speech, section 12(3) of the Human Rights Act 1998 requires the court to be “satisfied that the applicant is likely to establish that publication should not be allowed [at trial]” before granting relief. The House of Lords has previously held (in Cream Holdings v Banerjee [2005] 1 AC 253) that in this context the term “likely” sets a higher bar for granting an injunction than the usual standard of considering whether the applicant has a “real prospect” of success, but that the court may dispense with this higher standard where the particular circumstances make this necessary. Here, the Court of Appeal held it was justified in applying a lower standard than “more likely than not” given the risk of serious harm to the child if the injunction was not granted.

The case is on appeal to the Supreme Court and will be heard early in 2015.

OPO v MLA and another [2014] EWCA Civ 1277

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