Dear
Colleagues,
The
English Court of Appeal has granted an interim injunction
today in a case with a very novel set of facts: OPO v MLA
& Anor [2014] EWCA Civ 1277
.http://www.bailii.org/ew/cases/EWCA/Civ/2014/1277.html
It
raises points concerning negligence and the principle in
Wilkinson v Downton. MLA is a young performing artist, who
has written a semi-autographical book, detailing abuse which
he suffered as a child at school, and various trauma and
illnesses which he has encountered since. The claimant is
MLA’s son, who has various disabilities, and the book is
dedicated to him. He sought an injunction restraining
publication of the book, pending trial, on the basis that if
it were published it would cause him emotional or
psychiatric harm. (There are various other facts and issues
including a conflict of laws and human rights points).
The
Court rejects a viability of a claim in negligence by the
son against the father:
(Arden
LJ) [57]
“The only citation
from the authorities which we have been shown where the
court has considered the question of duty of care as
between parent and child is that which the judge cited
from Barrett v Enfield LBC (above). In Barrett,
this court held that there should be no duty of care. That
decision is binding on this court, since part of the
reasoning of Lord Woolf, with which the other members of
this court agreed, was that if a parent owed no duty of
care nor could the local authority, which was the
defendant in that case, in respect of the period when the
claimant was in local authority care. If the duty on which
Mr Nicklin has to rely were to be imposed, it would lead
to liability in a large number of cases because any
formulation of the proposition for a duty of care in this
case would encompass a whole range of commonplace
activities in which a parent is involved in caring for his
child. I would therefore hold that the judge was right and
that the appeal on this issue fails.”
On
Wilkinson, the Court of Appeal held that the claimant
had a sufficiently viable chance of success at trial that an
injunction should be granted. Arden LJ holds that the
requisite intention can be imputed (at 77). Jackson LJ
concurs, offering the following summary:
[120]
“An interlocutory application for an injunction is not the
occasion for a definitive decision on the scope of the Wilkinson principle.
In my view, however, the following facts of the present
case are sufficient to establish that the claimant has a
good prospect of success in a claim based on Wilkinson
v Downton:
i)
The book contains graphic descriptions of the abuse which
the father has suffered and his incidents of self-harm.
ii)
Those passages are likely to be quoted by reviewers or
newspapers who serialise the book.
iii)
On the uncontradicted expert evidence those passages are
likely to cause enduring psychological harm to the claimant
by reason of his Aspergers syndrome and other
vulnerabilities.
iv)
The book is dedicated to the claimant and is in part
specifically addressed to him: see page 258.
v)
The father has full knowledge of the risks posed to the
claimant. Indeed because of the claimant's vulnerabilities,
the father has previously subscribed to Recital K to the
order setting out the arrangements for the claimant's care:
"K
and upon the parties agreeing to use their best endeavours
to protect the child from any information concerning the
past previous history of either parent which would have a
detrimental affect on the child's wellbeing."”
As
noted there by Jackson LJ, this is only an interlocutory
application, but it does seem to raise some interesting
issues and there have not been many English appellate cases
exploring the Wilkinson v Downton principle since Lord
Hoffmann’s inconclusive dicta in
Wainwright v Home Office [2003] UKHL 53.
Best
wishes,
James
--
James
Lee
Senior
Lecturer in Private Law
The
Dickson Poon School of Law
King's College London
Strand
London WC2R 2LS
E-mail:
james.lee@kcl.ac.uk
Profile:
http://www.kcl.ac.uk/law/people/academic/j-lee.aspx