May 21, 2015

We were horrified last October when the Court of Appeal granted an interim injunction that prevented the publication of concert pianist James Rhodes’ book Instrumental from including graphic accounts of his sexual abuse suffered as a child, his consequential suicidal thoughts and attempts, his history of and treatment for mental illness and his fears that his young son might be abused too.  The application was made on behalf of his son, and the Court of Appeal accepted that (following the 1897 case of Wilkinson v Downton) there were good prospects of the applicant establishing at trial that publication would constitute the tort of intentionally causing physical or psychological harm, i.e. that there would be an unjustified statement that Rhodes intended to or was reckless about causing injury to his son. In a searing judgment today the Supreme Court has condemned the ridiculous interference with freedom of expression and has stated what ought to have been obvious:  the justification for the statement was the legitimate interest of Mr Rhodes in telling his story and the corresponding interest of the public in hearing it.  In particular, it was for Mr Rhodes to tell his story in his own words:  “his writing contains dark descriptions of emotional hell, self-hatred, rage… the reader gains an insight into his pain but also his resilience and achievements.  To lighten the darkness would reduce its effect”.  The interim injunction, which set about bowdlerising the book, was firmly denounced.  For anyone depressed by incursions into freedom of expression in recent years, cheer yourself up by reading paragraphs 75-79 of the judgment. The Wilkinson v Downton tort is not dead but is very unlikely to be used against publishers again.  For those interested in these things, the court has clarified that the tort has three elements: (i) a conduct element; (ii) a mental element and (iii) a consequence element. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. The tort is confined to those towards whom the relevant words or conduct were specifically directed, not the world at large (although they could be directed at a group  – the Court gives the example of someone shouting “fire” in the cinema, when there is no fire, those words would be addressed to the audience). Importantly, the tort will only be made out if the words or conduct have no justification or reasonable excuse. It is rare that there will be no justification in stating the truth. The mental element requires the claimant to show the defendant intended to cause harm. The question is one of fact: imputing intention as a matter of law is confirmed as a vestige of a previous age with no role in the modern law of tort. It will not be sufficient to show “recklessness” but it will be sufficient for a claimant to show that the defendant intended to cause severe distress and, in accordance with the tortious “eggshell skull” principle, a defendant must take a claimant as he finds him. The consequence element is simply the demonstration that there has been resulting physical harm or psychiatric illness, which would seem to exclude transient emotional distress which does not manifest itself in a medically recognised illness. This blog was co-authored with Anna Doble.