A father intended to publish a memoir detailing past abuse. His son sought an injunction, fearing psychological harm. The Supreme Court discharged the injunction, clarifying the tort of intentionally inflicting emotional distress requires intent to cause harm, not just recklessness.
Facts
The appellant, a professional musician and author, wrote a memoir detailing the extreme sexual, physical, and emotional abuse he suffered as a child, along with his subsequent struggles with drug addiction, self-harm, and mental illness. He intended for the book to be published for a wide audience. However, his former wife, acting as the litigation friend for their 12-year-old son (OPO), sought an injunction to prevent its publication. It was argued that reading the book, or even learning of its contents, would cause OPO, who had his own psychological vulnerabilities, severe emotional distress and lasting psychological harm. The Court of Appeal had granted an interim injunction, which the father then appealed to the Supreme Court.
Issues
The primary legal issue was whether the tort established in Wilkinson v Downton [1897] 2 QB 57 could justify a pre-publication injunction against the telling of a true story. To determine this, the Supreme Court had to clarify the essential elements of this tort, specifically concerning the necessary conduct, mental state of the defendant, and the required consequences for the claimant. A secondary issue involved the balancing of the father’s right to freedom of expression under Article 10 of the ECHR against the son’s right to respect for his private and family life under Article 8.
Judgment
The Supreme Court unanimously allowed the appeal and discharged the injunction. The leading judgment was delivered by Lady Hale and Lord Toulson.
The Court undertook a comprehensive review of the tort of intentionally inflicting emotional distress, originating from Wilkinson v Downton. They concluded that the tort consists of three distinct elements:
- The Conduct Element: Words or conduct directed towards the claimant for which there is no justification or reasonable excuse. The Court found this element was not met. The book was addressed to the public at large, not specifically ‘directed at’ the son. Furthermore, the father had a legitimate interest in telling his own story, which provided a justification for publication.
- The Mental Element: An intention to cause physical harm or severe mental or emotional distress. The Court decisively ruled that recklessness as to causing harm is not sufficient for this tort. There must be an actual intention to cause the requisite level of harm. The evidence showed the father’s aim was not to harm his son, but rather to explain his past in a way he hoped his son would one day understand.
- The Consequence Element: The claimant must suffer physical harm or a recognised psychiatric illness. While the court acknowledged the potential for psychological harm to the son, the failure to establish the conduct and mental elements meant the tort was not made out.
In their reasoning, the judges clarified the scope of the tort to prevent it from becoming a tool for censorship or a general ‘tort of privacy’. They stated:
In the light of the foregoing, we would hold that the tort is sufficiently contained by the combination of the three elements which we have identified. The elements are a conduct element, a mental element and a consequence element. We see no need for any further refinement or requirement, such as a lack of a legitimate interest on the part of the defendant. The defendant’s legitimate interest is a matter to be taken into account in the assessment of whether the conduct element is satisfied.
The judgment also heavily emphasised the importance of freedom of expression under Article 10, particularly in the context of prior restraint. They held that preventing the publication of a truthful account required a very high threshold of justification which had not been met.
There is a powerful public interest in the right to report the truth. The vindication of freedom of speech is a very powerful consideration.
Implications
The decision in Rhodes v OPO is significant for clarifying and narrowing the scope of the tort of intentionally inflicting emotional distress derived from Wilkinson v Downton. By requiring a specific intention to cause severe distress, rather than mere recklessness, the Court set a high bar for claimants. The ruling strongly reinforces the principle of freedom of expression, making it exceptionally difficult to obtain a pre-publication injunction (prior restraint) to prevent the telling of true stories, even where they may cause distress to others. The case serves as a key authority on the balance between Article 10 rights (freedom of expression) and Article 8 rights (private and family life) in the context of potentially harmful publications.
Verdict: The appeal was allowed and the injunction granted by the Court of Appeal was discharged.
Source: Rhodes v OPO [2015] UKSC 32
Cite this work:
To cite this resource, please use the following reference:
National Case Law Archive, 'Rhodes v OPO [2015] UKSC 32' (LawCases.net, October 2025) <https://www.lawcases.net/cases/rhodes-v-opo-2015-uksc-32/> accessed 12 October 2025
