James Rhodes v OPO [2015] UKSC 32, FIRAC

James Rhodes v OPO [2015] UKSC 32

Court: Supreme Court of the United Kingdom.

Argued: 19, 20 January 2015

Decided: 20 May 2015

Appellant– Hugh Tomlinson QC

Matthew Nicklin QC

Sara Mansoori Edward Craven

(Instructed by Bindmans LLP) [1]

Respondent– (OPO) Mathew Nicklin QC Adam Speker

 (Instructed by Aslam Charles Kousetta LLP)

(Canongate Books Ltd)

Antony White QC

Jacob Dean[2]

 (Instructed by Simons Muirhead & Burton Solicitors)

 Interveners– (English PEN, Article 19 and Index on Censorship – Written Submissions Only)

Adrienne Page QC Can Yeginsu

(Instructed by Olswang LLP)[3]

FACTS

This case involved an autobiography written by a father, James Rhodes, involving sexual assault and his own psychosis. The mother, acting on behalf of the child (OPO), sued to obtain an injunction preventing publication of the autobiography, claiming that it would inflict extreme emotional distress on OPO were he to ever read it.

The lower court dismissed the application on the basis that there was no cause of action in tort law. OPO appealed and the court of appeal held that “there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial.” The court of appeal granted an interim injunction on the basis that intention to cause harm could be imputed to Rhodes even if that intention was indirect, and a trial date was set. Rhodes appealed to the Supreme Court of the United Kingdom.

ISSUE OF THE CASE

This case expanded expression by denying an injunction to prohibit publication of an autobiography because of its potential effect on one potential reader. The Court also held that intent or malice could not be imputed to a speaker based on recklessness.

The Supreme Court of the United Kingdom discharged the injunction preventing publication of Rhodes’ book, because an injunction will not be issued to prohibit the publishing of a book for the potential effect the book may have on one reader — this infringes too greatly on the freedom of speech of the author.

RULE OF LAW

The tort of intentionally causing physical or psychological harm was first established in 1897 in the case of Wilkinson v Downton. [4]

Mr. Downton told Mrs Wilkinson (the wife of his pub landlord) that her husband had fractured his legs and had sent for help to get home. She suffered severe shock despite no previously known predisposition to this condition. Mrs Wilkinson was awarded damages on the basis that:

• she had a legal right to personal safety;
• Mr Downton had committed a wilful act;
• that act was “calculated” to cause physical harm to Mrs Wilkinson;
• there was no justification for the act; and
• Although there was no desire to cause the harm, the act was imputed in law as malicious.

There are three key elements required for the tort of intentionally causing psychological harm[5]:

1. A “conduct element”. This requires words or conduct to be directed towards the claimant for which there is no justification. The question of justification in this case was whether there was a “legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story”[6]. The Court of Appeal had not applied the correct test because it had considered only whether the publication was justified vis-à-vis the son, rather than vis-à-vis the full potential readership of the book. The justification of the publication of the book on the basis of free speech is considered separately below.

1. A “mental element”. The defendant need not intend to cause the psychological harm which resulted, it is sufficient if the defendant intended to cause severe distress. The Supreme Court has now made clear that intention for these purposes is actual intention inferred from the facts in the particular case. Recklessness is not sufficient. Previous authority had held that an intention could be imputed as a matter of law so that even if a defendant did not intend to cause such harm, an intention could be imputed to him if that was the likely consequence. However, the Supreme Court found that the “imputation of an intention by operation of a rule of law … has no proper role in the modern law of tort”[7]. James Rhodes did not have the necessary intention to cause severe distress to his son.

• A “consequence element”. It was accepted by the parties that physical harm or recognised psychiatric illness was the required consequence. (Lord Neuberger in fact suggested in what in this regard was a dissenting view that “it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant’s statement”.)

APPLCATION/ ANALYSIS OF THE CASE

In the case of Rhodes v OPO, the Supreme Court considered the scope of this tort and whether it could ever be used to prevent a person from publishing true information about themselves.[8]

The Supreme court of United Kingdom consider the domestic case law [31-67] and other common law authorities [68-71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case. The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant. [9]

In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton. In addition, the injunction – prohibiting graphic language – was wrong in principle and in form. The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough.

CONCLUSION

The Supreme Court of the United Kingdom noted that this case raised important questions concerning freedom of speech versus the limits of liability. The wilful infringement of the right to personal safety (by causing physical or psychological harm) has been recognized as a tort by the English courts and requires conduct, the proper mental state, and a resulting harm.

The court of appeal ruled that the publishing of the book would be indirect conduct harming OPO, but the Supreme Court disagreed, stating that the “freedom to report the truth is a basic right to which the law gives a high level of protection.” Rhodes’ autobiography is addressed to the public at large, and does not specifically identify OPO, nor does the publication mention OPO besides in the dedication of the book. Further, “a right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively.” Therefore, the court of appeal erred in limiting the language that Rhodes could use in his autobiography.

Next, the Court turned to the element of mental state. The court of appeal found that the necessary intention could be imputed to the father. The Supreme Court disagreed and set precedent by abolishing the imputed element of the tort of intentionally causing physical or psychological harm. The Court found that recklessness could not be included in the definition of the mental element of the tort because it would set too broad of a claim, allowing people far outside the scope of intended harm to sue for an imputed mental state. Therefore, the Court reversed the court of appeal and reinstated the ruling of the trial court, discharging the interim injunction and striking the tortious claim.

[1] Judicial Committee of the privy council website (The Supreme Court of UK)

[2] Ibid

[3] ibid

[4] https://www.carruthers-law.co.uk/news/james-rhodes-v-opo-by-his-litigation-friend-bhm-and-another-2015/

[5] http://ukscblog.com/case-comment-mla-v-opo-by-his-litigation-friend-bhm-and-another-2015-uksc-32/

[6] Supra note`1

[7] `Supra note 1

[8] https://www.supremecourt.uk/cases/docs/uksc-2014-0251

[9] ibid