This post is not strictly about a family law case. However, the case is about protecting the personal details of a relationship between two people and is, therefore, I think, of interest to readers of this blog.
The case is SOJ v JAO, which concerned an application by “a wealthy and well-known businessman” (‘Mr J’) for an injunction to restrain a woman (‘Ms O’) from publishing details of a relationship she had with him. The application was heard by Mr Justice Pepperall in the High Court last month.
The facts (or at least allegations) of the case may seem rather salacious, but that is not why I mention the case here. Any personal relationship has elements that are, or at least should be, private. Having said that, the more salacious the facts or allegations, the greater the likely damage to the victim’s reputation.
I will summarise (and simplify) the relevant facts as follows (note that the application was heard without notice to Ms O, so we only have Mr J’s side of the story):
- Mr J is a married man.
- Mr J and Ms O were in an intimate relationship between late 2017 and early 2018.
- Mr J claims that after he ended the relationship Ms O engaged in a campaign of harassment against him.
- Ms O alleged that Mr J had infected her with two sexually transmitted diseases, an allegation that Mr J vehemently denies.
- Ms O issued proceedings in the United States, apparently seeking compensation from Mr J, but without putting forward any detailed allegations. Her lawyer indicated that such allegations would be filed unless Mr J paid Ms O a significant sum of money.
- Negotiations took place between the parties’ lawyers. Mr J said that he felt that he had no option other than to agree to Ms O’s demands. Accordingly, a settlement was reached whereby he would pay her $1.5 million, in return for her silence. The settlement was incorporated into a written agreement dated 6th of August 2018.
- Mr J claims that Ms O breached the agreement, and clearly feared that she would make her allegations public. He, therefore, made his injunction application. The application was made without notice to Ms O, as it was feared that if she were given notice of the application she would make her allegations public before any injunction order was made.
Points to note
There are a number of points to note from Mr Justice Pepperall’s judgment, but I will mention the following:
Firstly, the general rule is that a court hearing should be in public. This is known as the ‘principle of open justice’. However, in certain circumstances, the court can decide that a hearing should be held in private, for example where publicity would defeat the object of the hearing, or where it involved confidential information, and publicity would damage that confidentiality.
Secondly, the possibility of blackmail obviously arises in cases such as this. That possibility does not automatically mean that the case must be heard in private. However, Mr Justice Pepperall felt that here that anonymity would not just protect Mr J from blackmail, but would also protect Ms O from any allegation that she had blackmailed Mr J.
Lastly, there is the obvious but important principle that once breached, confidentiality is of course lost forever. Accordingly, the court might be more inclined to grant an interim injunction in cases such as this, without giving the other party an opportunity to argue their case.
In any event, Mr Justice Pepperall was satisfied that the court was likely to prevent publication at any future trial. His reasons for this included that there was no particular public interest in publication of the details of this affair, that the court should look to enforce the contractual duty of confidence in the written agreement, and that there was a possibility that Mr J was the victim of blackmail.
Accordingly, Mr Justice Pepperall granted the injunction, pending a full hearing, when the matter could be further argued.
You can read the full judgment here.