Soj v Jao
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 04 October 2019 |
| Neutral Citation | [2019] EWHC 2569 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-003362 |
| Date | 04 October 2019 |
[2019] EWHC 2569 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Pepperall
Case No: QB-2019-003362
Adam Speker (instructed by Carter-Ruck) for the Claimant
There being no appearance by the Defendant
Hearing date: 24 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SOJ (hereafter “Mr J”) is a wealthy and well-known businessman. Between late 2017 and early 2018, he had an intimate relationship with JAO (hereafter “Ms O”). By this application, Mr J applies without notice for an injunction to restrain Ms O from publishing or disclosing the fact of their relationship, her allegation that she contracted a sexually transmitted infection from Mr J in the course of their relationship and various details of their legal dispute.
I heard Mr J's application in private on 24 September 2019. The following morning, I granted an injunction in substantially the terms of the draft before me. This is my judgment explaining the reasons for my order.
DEROGATIONS FROM THE PRINCIPLE OF OPEN JUSTICE
Rule 39.2 of the Civil Procedure Rules 1998 provides, so far as is relevant:
“(1) The general rule is that a hearing is to be in public. A hearing may not be held in private … unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.
(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice–
(a) publicity would defeat the object of the hearing; …
(c) it involved confidential information … and publicity would damage that confidentiality; … or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.
(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or a witness.”
ANONYMITY
I have no hesitation in not disturbing the anonymity order made by Master Davison pending an inter partes hearing in this case:
4.1 First, disclosure of the parties' names would defeat the very purpose of this application in that it would destroy the privacy of the information sought to be protected.
4.2 Secondly, I consider that non-disclosure is necessary in order to protect the interests of both parties:
a) On the evidence before me, Mr J may be the victim of blackmail. Refusing anonymity would be to deny him a potential judicial remedy for such wrong: LJY v Persons Unknown [2017] EWHC 3230 (QB); [2018] E.M.L.R. 19.
b) Equally, anonymity is necessary to protect Ms O's interests in circumstances where she has been accused of blackmail but not yet afforded the opportunity to put her side of the case: NPV v. QEL [2018] EWHC 703 (QB), [2018] E.M.L.R. 20, at [17].
4.3 Thirdly, anonymity has the advantage that the court can then explain rather more of the circumstances of this case in a public judgment: H v. News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 W.L.R. 1645.
SITTING IN PRIVATE
I carefully considered whether anonymity alone might suffice in this case. Not every privacy or confidentiality case must necessarily be heard in private, even where there are allegations of blackmail: see, for example, LJY. For the following reasons, I was, however, satisfied as to each of rr.39.2(3)(a), (c) and (g):
5.1 Publicity would have defeated the object of this hearing.
5.2 The case concerns confidential information that would be damaged by publicity.
5.3 Even if those concerns could be dealt with through anonymity and extra care in court, the allegations of blackmail warrant a private hearing at the without notice stage:
a) There is a threat in this case to make public information about a brief sexual relationship even after Mr J agreed to pay US$1.5 million to keep such matters confidential.
b) On the other hand, it must be remembered that Ms O has not yet had an opportunity to defend her position. Here, the allegations are not made against persons unknown (as in LJY) but against an identifiable person.
c) It is at least arguable that Ms O was not seeking to blackmail Mr J at all but to recover compensation for having been negligently or recklessly infected with one or more sexually transmitted diseases. As an English judge, I am not qualified to take a view on the likely award of an American jury, but it may be that Ms O will in due course be able to defend her initial demand of $2.5 million and subsequent settlement of $1.5 million upon the basis that she was simply seeking to settle a threatened tort action.
d) Equally, it may be that Ms O now has a genuine claim under US law arising out of the recent processing of her personal data. As an English judge, I can take a view as to the availability of a claim under the General Data Protection Regulation 2016 [“GDPR”], but it is not for me to assess the merits of any other claim that she might have under US law.
I am therefore satisfied that it is necessary to sit in private in order to secure the proper administration of justice.
SERVICE
The general rule is of course that applications should be made on proper notice: r.23.7(3). The rules do, however, allow parties to make applications without notice where there are “good reasons” for not giving notice: r.25.3(1). There is a further consideration in any case, such as this, where the relief sought might affect the exercise of the right to freedom of expression pursuant to article 10 of the European Convention on Human Rights. Section 12(2) of the Human Rights Act 1998 provides that in such a case:
“If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied–
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.”
Warby J observed in Birmingham City Council v. Afsar [2019] EWHC 1560 (QB) that the law is “particularly strict” when it comes to applications for relief which, if granted, would interfere with the article 10 right to freedom of expression. As he identified, s.12(2) is a jurisdictional threshold in that, unless the requirements of the subsection are satisfied, the court has no power to grant an injunction.
In this case, non-service is a matter of deliberate choice rather than practicality. Adam Speker, who appears for Mr J, argues that there are compelling reasons why Ms O should not be notified of this hearing in that the very purpose of the application is to prevent her from carrying out her threat to disclose confidential information about Mr J through the issue of proceedings in the United States.
On 1 August 2011, the then Master of the Rolls issued the Practice Guidance: Interim Non-Disclosure Orders reported at [2012] 1 W.L.R. 1003. Lord Neuberger MR dealt with the operation of s.12(2)(b) of the 1998 Act at paras 21–22:
“21. Failure to provide advance notice can only be justified, on clear and cogent evidence, by compelling reasons. Examples which may amount to compelling reasons, depending on the facts of the case, are: that there is a real prospect that were a respondent or non-party to be notified they would take steps to defeat the order's purpose ( RST v. UVW [2010] E.M.L.R. 355, paras 7, 13), for instance, where there is convincing evidence that the respondent is seeking to blackmail the applicant: G v. A [2009] EWCA Civ 1574 at [3]; T v. D [2010] EWHC 2335 at [7].
22. Where a respondent, or non-party, is a media organisation only rarely will there be compelling reasons why advance notification is or was not possible on grounds of either urgency or secrecy. It will only be in truly exceptional circumstances that failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order. Different considerations may however arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, or where, for instance, there are allegations of blackmail.”
I am satisfied that there are compelling reasons why Ms O should not be notified of this application. On the face of the evidence before me, threats have been made to disclose confidential information through the issue of proceedings in the US. In the event that notice were given, there is a real risk that such threat might be carried out in an attempt to deprive this application of any practical utility.
THE EVIDENCE
The evidence before me is contained in Mr J's witness statement and in a statement by his US attorney. It is important that I should make plain from the outset that, because I heard this application without notice to Ms O, this is necessarily a one-sided account of events.
THE RELATIONSHIP
Mr J is a married man. He says that after he ended his relationship with Ms O, she engaged in a campaign of harassment. In July 2018, Mr J's solicitors sent a “cease and desist” letter to Ms O. She replied by email the same day giving a very different account of their relationship. She denied that the relationship had ended...
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