Combine extremely wealthy claimant, the subject matter of his sex life, a freely entered into confidentiality agreement, the absence of a genuine public interest, a blackmail threat and Adam Speker, the barrister who is fast-becoming the doyen of urgent applications involving some, or all, of these issues (think NPV v QEL & ZED  EWHC 703 (QB) (see our blog here), PML v Persons Unknown  EWHC 838 (QB) or Clarkson Plc v Person Or Persons Unknown  EWHC 417 (QB)) and you have a recipe which is almost certain to guarantee success. So found out the claimant in the recent case of SOJ v JAO  EWHC 2569(QB).
The claimant, referred to as “Mr J”, in the anonymised judgment of Mr Justice Pepperall, sought to restrain the defendant, “Ms O”, from publishing (or otherwise disclosing) the (1) fact that they had had an intimate relationship and (2) her claim that he had given her a sexually transmitted infection.
In late July 2018, after the relationship had ended, Ms O instructed a US attorney to allege that Mr J had infected her with two sexually transmitted diseases and suggested that a legal action might be pursued in the US. Mr J denied this allegation and offered to provide medical evidence to support his case. Ms O then issued proceedings in the US. She did not provide any detail of her claim but suggested she would do so when she filed her subsequent complaint. In the meantime, Mr J issued proceedings against Ms O in London for what appears from the brief summary provided in the judgment to be a claim for harassment (apparently initiated after the relationship ended).
On 1 August 2018, there was a telephone conversation between Mr J’s UK lawyer and Ms O’s US Attorney. During that conversation, Mr J was presented with an ultimatum: either he provided Ms O with a very substantial amount of money or the sensitive details of their relationship would be disclosed in the US proceedings. Believing he had no other option, Mr J agreed to pay $1.5 million (in instalments) in exchange for Ms O’s silence. The parties entered a settlement agreement at the heart of which was Ms O’s obligation to maintain the confidentiality of (1) the details of her relationship with Mr J, (2) the contested allegation of infection and (3) the parties’ legal dispute. Ms O also agreed to abide by a non-disparagement clause and a jurisdiction clause whereby she accepted that breach of the agreement would result in the granting of a temporary and permanent injunction “by any court of competent jurisdiction including but not limited to the High Court in England and Wales”.
In April 2019, Mr J was contacted by a third party (referred to as “Ms X” in the judgment) who told him that she knew about the settlement agreement and the payment of money to Ms O. Ms X also alleged that Ms O had repeatedly disparaged Mr J and stalked his family Subsequently, Ms X provided Mr J with copies of WhatsApp messages between her and Ms O which demonstrated, according to Mr J’s lawyers, that Ms O had in fact breached the agreement. Ms O denied the breach and made her mobile phone available for examination by an independent forensic expert. The evidence obtained from Ms O’s phone indicated that she was not telling the truth. Mr J therefore demanded repayment of $1million already paid in accordance with the terms of the settlement agreement.
Ms O hit back and alleged that the search of her phone had infringed her rights under the GDPR because Mr J and his lawyers had “got carried away” and provided “wildly improper” instructions to the forensic expert. Somewhat surprisingly in view of her apparent consent to the inspection, Ms O threatened legal proceedings against Mr J for the purported breach of her data protection rights. Ms O’s attorney also made a number of thinly-veiled threats to disclose information covered by the settlement agreement in subsequent legal proceedings. These threats caused the claimant to make his application for interlocutory injunctive relief.
Decision and comment
Given the facts, Mr Justice Pepperall’s decision to award an injunction was entirely unsurprising. Information pertaining to a claimant’s sex life is inherently private and in this case it was buttressed by the confidentiality provisions contained in the settlement agreement. In accordance with the recent Court of Appeal decisions in Mionis v. Democratic Press SA EWCA Civ 1194 and ABC v. Telegraph Media Group Ltd  EWCA Civ 2329, Mr Justice Pepperall held that considerable weight should be attached to the contractual duty of confidence as the agreement had been freely entered into between two parties who were each in receipt of legal advice and under which Mr J agreed to pay a very significant sum. Mr Justice Pepperall also concluded that Mr J had likely been a victim of blackmail when Ms O had, prior to entering the settlement agreement, demanded $2.5 million to refrain from pursuing her original claim in the US. As many recent cases have demonstrated, blackmail adds further weight to an injunction application.
More unusual was the fact that Mr Justice Pepperall granted a worldwide injunction in circumstances where the evidence showed that the immediate threat of publication was only in the US. This was possible because where a claimant seeks to enforce against a contracting party an express contractual obligation which is territorially unlimited – as was the case here – the Court can grant an injunction with worldwide effect against that party (see, for instance, Linklaters LLP & Anor v Mellish  EWHC 177).
Under the terms of the injunction Ms O is still permitted to issue proceedings against Mr J anywhere in the world, thereby allowing her to pursue her GDPR claim, provided that in so doing she does not disclose the information protected by the injunction. She was also permitted to disclose information pursuant to clause 3(c) of the settlement agreement she had signed in 2018, which presumably permits disclosures to the police etc. Such provisions are incorporated to ensure that the terms of the injunction are confined to the minimum required to protect the private information in question and that a defendant is not prohibited from making disclosures in the public interest.
This post originally appeared on the Brett Wilson Media Law blog and is reproduced with permission and thanks.