The Supreme Court has lifted an injunction placed on the publication of Instrumental, the autobiography of James Rhodes, the author and pianist. The injunction had first been upheld by the Court of Appeal on the basis that publication of the book would lead to the commission of the tort of intentional infliction of mental suffering. This tort was formulated in Wilkinson v Downton, a 19th century case favoured by legal textbooks but very rarely used in practice.
The Supreme Court's decision overruled the Court of Appeal's judgment which had held that the tort applied in circumstances where the publication of the book could cause psychological harm to the author's son.
Classical pianist James Rhodes had written an autobiography which detailed his horrific childhood experience of sexual abuse, the serious mental health problems which resulted and his eventual recovery through music. An injunction preventing publication of the book was sought on behalf of his young son, whose mother Mr Rhodes had separated from some years previously.
An interim injunction was denied at first instance, but it was subsequently granted by the Court of Appeal on the basis that the publication of the book might constitute the tort of intentionally inflicting mental suffering.
The case rested solely on the tort devised in Wilkinson v Downton – there was no claim for libel, misuse of private information or harassment. The facts of Wilkinson v Downton involved a misconceived practical joke played by the defendant on the claimant, whereby a false story was told by the defendant to the claimant that her husband had been severely injured, resulting in the claimant suffering from severe shock. The claimant was awarded damages on the basis that the defendant had "wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her."
The tort effectively lay dormant for seventy-five years until it underwent a modest resurgence in the context of harassment. The tort then evolved to encompass "recognised psychiatric injury" as well as physical harm.
The question the Supreme Court was required to answer was whether the tort would bite in circumstances where a person published true information about themselves.
The Supreme Court stated that the tort must have three elements: a 'conduct element'; a 'mental element'; and a 'consequence element'. The final element was not addressed, it being accepted that the "consequence required for liability is physical harm or recognised psychiatric illness".
The conduct element requires words or conduct "directed towards the claimant" for which there is no justification or reasonable excuse. The Supreme Court decided that the Court of Appeal had clearly fallen into error on this element because the book was intended "for a wide audience". Although the book was dedicated to Mr Rhodes' son, this did not mean that the son was intended to read it.
The Supreme Court acknowledged Mr Rhodes' right to tell the world his story and noted that it was "difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another's right to personal safety".
Regarding the mental element of the tort, the Supreme Court held that the Court of Appeal had imputed as a matter of law the necessary intention to cause harm on the author. Although the Court of Appeal had been bound by previous authority on this point, the Supreme Court held that imputation by operation of a rule of law is a "vestige of a previous age and has no proper role in the modern role of tort." Intention must therefore be inferred from the facts of the case.
On this point the Court clarified that (i) the intention need not be to cause the psychological illness that actually resulted, it was sufficient that the claimant intended to cause "severe distress"; and (ii) that recklessness was not sufficient to constitute the necessary intention, an actual intention to cause severe distress was required.
In conclusion, there was no basis for supposing that the publication of the book would constitute either the requisite conduct or mental elements of the tort and as such the injunction was lifted.
The Supreme Court's judgment shows a careful and thorough analysis of the Wilkinson tort charting both its history and development. By putting the tort into this context, the Court was able define its narrow limits which ultimately excluded its application to this case.
The decision will be particularly welcome news for publishers who would undoubtedly have been nervous that the expansion of the tort under the Court of Appeal's decision could have led to a swathe of injunctions.
The tort still has application, but it is now clear that only words which are directed at an individual or group with the intention to cause them "physical harm or severe mental or emotional distress", without justification, will fall within its ambit.