OPO v MLA & Anor

An interim injunction protecting a vulnerable child may extend to passages which are seriously liable to be understood by the child as vividly descriptive and therefore disturbing. Whether material is “graphic” must be assessed in its context and with the protected person’s vulnerability in mind.

Where an expedited trial, a cross-undertaking in damages and the limited extent of the restrained material reduce prejudice to publication, maintaining the restraint may be proportionate and satisfy section 12 of the Human Rights 1998.

The Court of Appeal had granted an interim injunction pending determination of whether a proposed autobiographical work involved the intentional infliction of emotional harm upon the appellant, a vulnerable child. The order prohibited publication of specified graphic accounts concerning the first respondent’s childhood sexual abuse, suicidal conduct, mental illness, self-harm, thoughts of killing the appellant and fears that the appellant might suffer sexual abuse.

Following an order made on 8 October 2014, the court considered the respondents’ objections to the inclusion of particular passages in Confidential Schedule 3. The central issue was whether those passages fell within the injunction’s description of graphic accounts and should remain restrained pending the expedited trial.

1. All disputed passages were to remain in Confidential Schedule 3. The schedule had to be interpreted so as to fulfil the interim order’s protective purpose. Its preparation was intended to provide certainty, rather than to deprive the appellant of relief to which he was properly entitled.

2. In this context, “graphic” meant vividly descriptive. The assessment had to recognise that the protected person was a vulnerable child. Material therefore fell within the injunction when it was seriously liable to be understood by a child as vividly descriptive in a disturbing way. Applying that standard, the disputed passages comprised graphic accounts of sexual abuse, preparatory acts, mental illness, self-harm or the first respondent’s vulnerabilities and their connection with the appellant.

3. The continued restraint was proportionate. The court relied on three safeguards: the trial had been expedited; the first respondent was protected by a cross-undertaking in damages; and the disputed passages formed only a small part of the work. The order also met the requirements of section 12 of the Human Rights 1998.

Arden LJ delivered the judgment of the court. Jackson and McFarlane LJJ agreed.

1. Court of Appeal (Civil Division): The court had ordered an interim injunction on 8 October 2014. By this ruling, it directed that all passages challenged by the respondents should remain in Confidential Schedule 3 pending the expedited trial: [2014] EWCA Civ 1277.

2. High Court, Queen’s Bench Division: The proceedings came before the Court of Appeal from the decision of Bean J reported as [2014] EWHC 2468 (QB). The supplied ruling does not state the High Court’s disposition.