From: Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
Sent: 09 October 2014 14:13
To: Lee, James; obligations@uwo.ca
Subject: Re: English Court of Appeal on Wilkinson v Downton and emotional/psychiatric harm claims against parents

This is a very dangerous decision.

The essence of Wilkinson v Downton is not simply that I do an act that I know will hurt you, but that I do an unjustified act which I know will have that effect (in Wilkinson telling a deliberate untruth, etc). In this case there was no suggestion of an unjustified act. MLA's proposed book infringes nobody's rights; by publishing it he will tell no lies, break no confidence and commit no wrong; he will not even infringe anyone's human rights (as the CA says). In that case the attitude of English law should be hard and logical: whatever the degree of harm or distress caused, there is neither a legal or moral cause to interfere with MLA's freedom of action.

Andrew

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