IN CONFIDENCE
This judgment is confidential to the parties and their legal representatives and accordingly it may not be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved.
ON APPEAL FROM THE HIGH COURT
Queen’s Bench Division
The Hon Mr Justice Bean
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LADY JUSTICE ARDEN
LORD JUSTICE JACKSON
and
LORD JUSTICE McFARLANE
Between:
OPO | Appellant |
- and - | |
(1) MLA (2) STL | Respondents |
Matthew Nicklin QC (instructed by Aslan Charles Kousetta LLP) for the Appellant
Hugh Tomlinson QC (instructed by Bindmans LLP) for the First Respondent and Jacob Dean (instructed by Simons Muirhead & Burton) for the Second Respondent
Judgment
RULING on submissions filed pursuant to the order of the Court dated 8 October 2014
IN PRIVATE
Lady Justice Arden:
This is the judgment of the Court. It is handed down in private and we direct that it is to become public only if this Court or the High Court by order so permits.
Further to the order made on 8 October 2014, this Court has to determine whether certain text sought to be injuncted should remain in Confidential Schedule 3 to that Order. We are grateful for the composite table comprising the defendant’s objections, the claimant’s response and the defendant’s reply. We will refer to the extracts by reference to their page number in the first column.
It is important to recall the purpose for which we are deciding this question. The Court has decided that an interim injunction should be granted so that the issue of whether the Work involves the infliction of intentional emotional harm on the claimant can be decided. In those circumstances, we have to interpret the terms of the order so as to achieve its purpose, which is the protection of the claimant in the meantime. In early September, the Court gave directions for Confidential Schedule 3 to be completed in order to create a situation of certainty. It was not intended to deprive the claimant of any relief to which he was properly entitled.
The starting point is the information referred to in confidential Schedule 2. This description was provided by the parties to the Court and reads in material part as follows;
“(1) The information or purported information that the Respondents intended to publish in a book entitled “Instrumental” (“the Book”) (extracts of which are particularised in Confidential Schedule 3) which give graphic accounts of the First Defendant’s account of sexual abuse he suffered as a child; his suicidal thoughts and attempts; his history of and treatment for mental illness and incidents of self-harming; his thoughts about killing the Appellant; his fears that the Appellant would also be a victim of sexual abuse and linking this account to the Appellant.
(2) Any information liable to or which might lead to the identification of the Appellant (whether directly or indirectly) as the subject of the proceedings or the material referred to above.”
The information which may not be published from the Work is in every case “a graphic account”. The graphic account must relate to the defendant’s account of:
sexual abuse he suffered as a child or his suicidal thoughts or attempts or
his history of and treatment for mental illness and incidents of self-harming or
his thoughts about killing the appellant or
his fears that the appellant would be a victim of sexual abuse and linking this account to the appellant.
We take the word “graphic” in this context to mean “vividly descriptive”. In judging what is vividly descriptive, we have borne in mind that the person to be protected is a vulnerable child. In those circumstances, we consider that what should be injuncted is that which we consider to be seriously liable to being understood by a child as vividly descriptive so as to be disturbing. We have regard to the evidence referred to in the judgments.
In our judgment in following this approach, we are satisfied that all of the passages identified by the defendant should be within Confidential Schedule 3.
It is not possible in the scope of this short ruling to go into every aspect of every statement quoted on the 28 pages of schedule. However, we will give some reasons in outline to indicate how we have applied the principles we have identified.
Page 33. Although this uses a word which adults could use dispassionately, namely “rape”, the actual expression is dramatic. It is “getting raped”. We are satisfied that that is graphic language in the sense described above.
Page 45. This is a graphic account of both the cycle of sex abuse and the mental processes which the defendant went through.
Page 64. This is a graphic account of acts preparatory to sex abuse.
Pages 67 -68. This is clearly a graphic account of mental illness. It ends with the words “And so began my first psychiatric hospital experience.”
Pages 78 -79. This passage includes references to mental illness and is graphic in the sense given. There are references to Jane which may not ordinarily be connected with mental illness but we note that the passage includes “that [i.e. marriage] would balance out the crazy in me.”
Page 82. It is said that terror at the responsibility of the birth of a first child is a common emotion, but it is properly capable of being contended that in this context it is connected with mental illness.
Pages 83-85 (excluding underlined passages). This is a graphic account of the vulnerabilities of the defendant. In particular it includes a sentence “An infant having a father who had not even remotely conquered his particular brand of crazy does not have a father.” There is a clear link between mental illness and the birth of OPO. The account is a graphic account in the sense given above of mental illness.
Page 88. We are satisfied this ought to be within the order. We note in particular that the final sentence reads “Those blissfully ignorant nurses might as well have given the keys to an Aston Martin to a four year-old in Times Square and said, ‘Go crazy.’”
Pages 90-91. This seems to us to be a graphic description of mental illness in the sense given above.
Page 92. This refers to self-harm and is graphic within in the sense given above.
Pages 100-103. This is a graphic account of mental illness in our view.
Pages 106-107. There is a reference here to mental illness and to sex abuse. This qualifies to be in the order.
Pages 107-112. This in our view is a vivid description of mental illness.
Page 123. This is in our view a graphic account of mental illness. The same applies to the remaining extracts (pages 130-2, 136, 141-2, 220 and 222-3), which we have read.
Having reached our conclusions, we have considered the question of prejudice to the defendant. As (1) we have ordered that the trial be expedited, (2) the defendant is protected by a cross-undertaking in damages, and (3) the statements in question are a small part only of the Work, we are satisfied that the order is proportionate.
We are also satisfied that (as explained in the judgments) the order will still meet the requirements of Section 12 of the Human Rights 1998.
Lord Justice Jackson
I agree.
Lord Justice McFarlane
I also agree.