Easter Term [2015] UKSC 32 On appeal from: [2014] EWCA Civ 1277
JUDGMENT
James Rhodes (Appellant) v OPO (by his litigation friend BHM) and another (Respondents)
before
Lord Neuberger, President Lady Hale, Deputy President Lord Clarke Lord Wilson Lord Toulson
JUDGMENT GIVEN ON
20 May 2015
Heard on 19 and 20 January 2015
Appellant Hugh Tomlinson QC Sara Mansoori Edward Craven (Instructed by Bindmans LLP)
Respondent (OPO) Matthew Nicklin QC Adam Speker (Instructed by Aslan Charles Kousetta LLP)
Respondent (Canongate Books Ltd) Antony White QC Jacob Dean (Instructed by Simons Muirhead & Burton Solicitors)
Interveners (English PEN, Article 19 and Index on Censorship - Written Submissions Only) Adrienne Page QC Can Yeginsu (Instructed by Olswang LLP)
LADY HALE AND LORD TOULSON: (with whom Lord Clarke and Lord Wilson agree)
By these proceedings, a mother seeks to prevent a father from publishing a book about his life containing certain passages which she considers risk causing psychological harm to their son who is now aged 12. Mother and son now live in the United States of America and so the family court in England and Wales has no jurisdiction to grant orders protecting the child's welfare. Instead, these proceedings have been brought in his name, originally by his mother and now by his godfather as his litigation friend, alleging that publication would constitute a tort against him. The tort in question is that recognised in the case of Wilkinson v Downton [1897] 2 QB 57 and generally known as intentionally causing physical or psychological harm. What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?
As the object of the proceedings has been to protect the child from harm, all the parties have until now been anonymous, as has the country where the child now lives. This court has decided that the tort does not have the scope contended for on the child's behalf and hence that the book may be published including the specific passages to which objection is taken. This means that the book will inevitably be published in the very near future. In those circumstances there can be no justification for keeping secret the information contained in the book. This includes, obviously, the author's name and also the country where mother and son are now living. The book, however, uses pseudonyms for both the mother and the child and so this judgment will continue to do so. But this court is now able to describe the book and its contents more fully than the lower courts were able to do. In this way, the reasons why both the mother and the father have been motivated to act as they have should become much clearer than perhaps they have been hitherto.
The book
The father is James Rhodes, the concert pianist, author and television filmmaker. The book is entitled Instrumental. The author believes that "music has, quite literally…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.