October 28, 2019

The claimant, SOJ, was a wealthy and well-known married businessman. Between late 2017 and early 2018, he had an intimate relationship with the defendant, JAO. After the relationship ended, SOJ said that JAO engaged in a campaign of harassment. JAO threatened to disclose her relationship with SOJ and also alleged that she had contracted a sexually transmitted infection from SOJ. She issued proceedings in the US, but did not particularise her case. SOJ issued a claim in London.

In August 2018, the parties entered into a settlement agreement under which SOJ agreed to pay US$1.5 million to secure JAO’s silence through confidentiality and non-disclosure provisions.

A mutual acquaintance then informed SOJ that she knew about the settlement agreement and the payment of money under it. SOJ said that this information could only have come from JAO. To try and show no breach of the settlement agreement, JAO agreed to submit her mobile phone to forensic examination.

In August 2019, JAO threatened proceedings in the US alleging breaches of her rights under the GDPR, arguing that when examining JAO’s mobile phone SOJ had breached the GDPR.

SOJ then applied to the High Court without notice for an injunction to restrain JAO from publishing or disclosing the fact of their relationship, her allegation that she had contracted a sexually transmitted infection from SOJ and various details of their legal dispute.

Mr Justice Pepperall continued the anonymity order that had previously been granted on the grounds that:

1. i) disclosure of the parties’ names would defeat the very purpose of the application in that it would destroy the privacy of the information sought to be protected;
2. ii) non-disclosure was necessary in order to protect the interests of both parties: (i) SOJ might be the victim of blackmail and refusing anonymity would be to deny him a potential judicial remedy for such wrong; and (ii) JAO had been accused of blackmail but had not yet had the opportunity to put her side of the case; and

• iii) anonymity had the advantage that the court could then explain rather more of the circumstances of the case in a public judgment.

Pepperall J was also satisfied that it was necessary to sit in private to secure the proper administration of justice.

As for the interim injunction, Pepperall J was satisfied that the court was likely to prevent publication at trial:

• SOJ had a reasonable expectation of privacy in respect of the details of his affair with JAO;
• there was no general public interest in other people’s sex lives and no public interest in publication of the details of this particular affair;
• the court should look to enforce the contractual duty of confidence, particularly as the agreement was in settlement of an earlier legal dispute that was freely entered into between two parties who were each in receipt of independent legal advice, and there was no evidence that improper pressure was put on JAO or of any other vitiating factor that would entitle her to seek to avoid the settlement;
• the parties had expressly agreed in the settlement agreement that any breach would be enforceable by the grant of an injunction;
• it appeared unlikely that JAO had a claim under the GDPR. It was not, however, necessary to determine this at this stage. Even if she did have a claim, its existence was not a reason for denying SOJ injunctive relief pending a return day;
• there was a credible basis for SOJ contending that he had been the victim of blackmail; blackmail can be committed and the court can restrain publication even where the underlying information at the core of the threat of publication is true; the possibility of blackmail added further weight to SOJ’s application;
• there was credible evidence that JAO might have breached the confidentiality provisions of the settlement agreement by informing the third party of the existence of the settlement agreement and the payment of money under it, and as evidenced by the results of the forensic analysis of her mobile phone;
• there was evidence that JAO was threatening to further breach the confidentiality agreement;
• given that there was a real risk that JAO might disclose the private information later the same day and the gravity of the potential adverse consequence of disclosure, it was right to grant short-term interim relief even if it was wrong to conclude that SOJ was more likely than not to succeed at trial;
• SOJ would not be adequately compensated in damages for breach of confidence due to the significant embarrassment and upset that disclosure of the confidential information might cause; and
• it was not obvious that JAO would suffer any real loss by being unable to breach the confidentiality agreement. If she did, her interests were adequately protected by the cross-undertaking in damages offered by SOJ.

Accordingly, Pepperall J restrained the use, disclosure and publication of the confidential information anywhere in the world. It was not an anti-suit injunction, he said, and there was nothing to stop JAO from issuing her threatened proceedings, whether in the US or any other jurisdiction, provided that she did not breach the terms of the order. (SOJ v JAO [2019] EWHC 2569 (QB) (4 October 2019) — to read the judgment in full, click here).