X AND ANOTHER v. Z

HCA 414/2020

[2020] HKCFI 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 414 OF 2020

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J U D G M E N T

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A.   Introduction

1.  This Judgment decides the inter partes application dated 17 April 2020 taken out by the plaintiffs for the continuation of various forms of injunctive relief granted by me on an ex parte basis, originally on 16 April 2020, as amended and continued on 24 April 2020.

2.  The 1^st plaintiff (“X”) and the 2^nd plaintiff (“Y”) are wife and husband respectively.  It is of some importance to their case to note that they come from and were married in a Muslim country, and they are both Muslim.  They moved to Hong Kong in 2016, not long after they were married.

3.  The defendant (“Z”) is also an expatriate.  Z and X are colleagues, working for the same employer.

4.  To put it neutrally for the moment, these proceedings arise out of the transition from what was originally merely a working relationship between X and Z, to a closer personal and then intimate relationship, and to the difficulties that have arisen between them as a result of that relationship and its cessation, flowing back into the working environment.  The precise nature of the relationship between X and Z is significantly in dispute.

5.  By the general indorsement of claim on their Writ, X and Y seek: (1) permanent injunctive relief to prevent Z from harassing, intimidating, causing nuisance, threatening, assaulting, disturbing, molesting, pestering, annoying or otherwise interfering with them (and those around them); (2) an order that Z deliver up and destroy all original and copy photos, recordings, documentation and information in his possession which contain the personal data of X and/or Y and/or their family members; and (3) damages, including exemplary and aggravated damages for harassment, intimidation, defamation and/or malicious falsehood.  There is, as yet, no fully pleaded statement of claim.

6.  The ex parte application for injunctive relief was specifically pursued in reliance only on the two causes of action in harassment and intimidation.  The ex parte Order made on 16 April 2020 essentially restrained Z from acts of harassment and intimidation, and required him to deliver up or destroy certain materials in his possession regarding X and Y.  There were also anonymity and gagging orders, at that stage to seek to preserve and maintain the particular protections intended by the seeking and making of the Order.  Counsel for X and Y on the ex parte application was Ms Madeleine Booth.

7.  At the first return date on 24 April 2020, Ms Booth continued to appear as Counsel for X and Y, and Mr Lavesh Kirpalani appeared as Counsel for Z.  Without prejudice to Z’s position that the ex parte Order should not have been made and should not be continued, in essence Z undertook (pending further hearing) not to harass or intimidate X or Y, and to preserve the relevant materials subject to the claim for delivery up, and to make an affidavit identifying those materials in his possession.  On that basis, parts of the original Order were discharged, but the anonymity and gagging orders remained in place.

8.  Directions were given for the filing of evidence, and for there to be a full inter partes hearing, which was fixed for 14 May 2020.  In total, each of X and Y have filed three affirmations, and Z has filed two affidavits.  References in this Judgment to that evidential material will be in the following format: for example, X’s 2^nd affirmation will be referred to as “X2”.

9.  Prior to the hearing, both Ms Booth and Mr Kirpalani filed various skeleton arguments.

10.  Z’s evidence and Mr Kirpalani’s submissions identified that Z sought to discharge the ex parte Order, and to oppose the inter partes application, on the various bases that: (1) X and Y have not satisfied the threshold of ‘serious issue to be tried’; (2) X and Y failed to make full and frank disclosure; (3) there was no justification in making the application on an ex parte basis; and (4) the terms of the orders sought were too wide, in that they potentially reflect relief for a different cause of action (misuse of private information). Z also opposes the making or continuation of the anonymity and gagging orders. Z argues that the proceedings should be conducted as normal, with the parties referred to by their actual names and in proceedings open to the public, and a public decision.

11.  Unfortunately, as a result of some tardiness which I do not condone, the arguments were filed out of the normal sequence. At the hearing on 14 May 2020, and after some introductory submissions from Ms Booth, Mr Kirpalani asked for a short adjournment so that the argument might continue after he had a proper opportunity to consider what he said was the change in the way in which the case was being presented by Ms Booth from what he had understood was the way it was presented by her previously. Whilst Ms Booth did not accept that any change of position had arisen, she did not particularly object to a short adjournment, in light of the importance of the case to all parties.  Hence, the matter was adjourned to, and the argument continued on, 18 May 2020.  Mr Kirpalani filed a further skeleton argument before that resumed hearing.

12.  In light of the importance of the points in dispute and the legal arguments – important not just to the parties, but potentially on a wider basis – I reserved my decision.  Z’s undertakings, and the other interim orders, were to continue to “hold the ring” at least until this Judgment.

B.   Applicable Legal Principles

B.1    Tort of Harassment

13.  Unlike, for example, in the United Kingdom, there is no statutory provision in Hong Kong creating the tort of harassment.  But even in the UK legislation, there is no definition of harassment.  Rather, harassment is an ordinary English word with a well understood meaning. In Hong Kong, the tort of harassment was summarised in Secretary for Justice v Persons Unlawfully and Wilfully Conducting etc [2019] 5 HKLRD 500 at §22, drawing on Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at §§62-69.

14.  The tort of harassment relates ordinarily to a course of conduct by a person by words or action directly or through third parties, sufficiently repetitive in nature that any person ought reasonably to know would cause worry, emotional distress or annoyance to another person.  The requirement that there be a course of conduct identifies that the conduct must have occurred on at least two occasions in relation to the person allegedly harassed.  But whatever is the number of occasions must, in the circumstances, be sufficiently repetitive in nature to trigger the tort.  The conduct must be overt, that is deliberate.

15.  The applicable test as to whether or not there has been harassment is an objective test, applied to the particular circumstances of the case.  Context is important.  The court’s assessment includes whether the conduct has crossed the boundary from the regrettable to the unacceptable, or from the unattractive to the oppressive.  The mental element required is being reckless as to whether the victim would suffer injury from the conduct.

16.  Damage to the victim is necessary to constitute the complete tort.  Harassment can result in a range of reactions, extending from physical injury at one end of the scale to mere humiliation at the other. The correct balance has to be struck in the particular circumstances.  Anxiety is capable of constituting damage, and financial loss would also be recoverable.

17.  As to the reaction of a person who alleges he has been harassed, Mr Kirpalani submitted that a victim of harassment (and/or intimidation) should react with fear.  He made that submission by reference to a statement of Wilson Chan J in Law Ka Yan Thompson v Ho Kang Wing [2020] HKCFI 513 at §68, where he said:

“In considering the inherent probabilities, the overall impression of character and motivation, it is significant that the plaintiff’s conduct and behaviour were at odds with and contrary to what one would normally expect of a victim of intimidation and harassment. One would expect a victim to be frightened.”

18.  But, as the quote shows, Wilson Chan J was not suggesting that fear is a necessary part of the tort of harassment. Rather, after trial, he was taking account of the plaintiff’s reaction as part of the overall consideration as to the inherent probabilities that an act of harassment (or intimidation) had occurred.  He was not saying that if there is no fear, there is no harassment or intimidation.  He was simply identifying that the absence of any fear is relevant to whether or not a finding of harassment or intimidation will be made, where it is necessary for the claimant to show some worry, emotional distress or annoyance.  It seems to me that acts of harassment or intimidation will indeed often cause fear in the victim, but victims react in different ways, and I do not think that fear itself is a necessary element.

19.  Although considering the facts of other cases may not greatly assist, Mr Kirpalani placed some considerable reliance on Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB) at §§75-78, where Nicklin J considered whether the course of conduct in that case, being numerous emails sent over a 9-month period, either individually or collectively “crossed the line from unattractive, even unreasonable, to oppressive and unacceptable”.

20.  The judge recognised that the claimant might be irritated by the persistence of the defendant and that the emails might cause distress and annoyance, but held on the facts that the distress was largely caused by the content of the emails, and the fact that they were being sent to third parties, rather than the manner and frequency of delivery.  He also noted that the claimant could exercise a degree of self-help by simply deleting emails; that the allegations did not change or become more extravagant or serious as time goes on (which can be a hallmark of some harassment cases); and that certain language used in some emails was suggestive of threats, but these threats lacked clarity and consistence and had never been acted upon over the 9-month period.  After noting various other features of the case, the judge expressed satisfaction that the gravamen of the complaint was one of defamation, and indeed that the case was a defamation claim being advanced under the guise of a harassment claim in order to avoid the ‘defamation rule’ (that an injunction would not be granted if the defendant says he intends to justify the defamation or to make fair comment on a matter of public interest).

21.  But, Nicklin J also emphasised that whilst he was refusing the interim injunction, he was not deciding that the defendant had not pursued a course of conduct that amounts to harassment. That was a matter that would be determined at trial, and the judge recognised that it may turn out that the claim succeeds, and perhaps more evidence may emerge.

22.  Reference was also made by both Ms Booth and Mr Kirpalani to another English case, Dowson and others v The Chief Constable of Northumbria Police [2010] EWHC 2612 (QB).  That case was, of course, also decided on the basis of the provisions of the UK Protection from Harassment Act 1997, and in the light of other English decisions upon it.

23.  But it reiterated a number of ‘themes’ which might be distilled and taken as applicable generally to the tort of harassment, including in Hong Kong:

(1)  harassment is a word which has a meaning which is generally understood;

(2)  it generally describes conduct targeted at an individual which is calculated, in an objective sense, to produce alarm or distress;

(3)  but there are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment;

(4)  therefore, that a person has suffered distress is not by itself enough to show that the cause of the distress was harassment;

(5)  but damage to the victim – in the form of worry, emotional distress, annoyance, anxiety or financial loss – is a necessary part of the tort;

(6)  the relevant conduct has to be sufficiently repetitive in nature;

(7)  it also has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounts to harassment;

(8)  harassing conduct crosses the boundary between the unattractive, and even the unreasonable, to conduct which is oppressive and unacceptable;

(9)  whether that boundary has been crossed may depend on the context, including the social or working context, in which the conduct occurs.

B.2    Tort of Intimidation

24.  The tort of intimidation was also considered in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at §43.  The three main elements are that there is (1) an unlawful threat; (2) the intention to cause harm to the claimant with that threat; and (3) damage to the claimant.

25.  But the essence of the tort is coercion: see, Clerk & Linsell on Torts (22^nd Ed) at §24-61.  The threat, for the purposes of the tort of intimidation, is something which puts pressure on the person to whom it is addressed to take a particular course of action. The threat must be of the “or else” kind.  It must be capable of being effective to produce the desired result, and be more than idle abuse, something to be taken seriously.  A warning which does not seek to have the recipient of the warning change his plans is not a threat.

26.  The concept is not limited to express threats. There may be acts from which a threat can be implied.  It has also been recognised that there may be some overlap between the tort of intimidation and the tort of harassment.  But a threat is lawful as long as a defendant only threatens to do what he has a legal right to do.  The logic is that it would be absurd to make a person liable for threatening to do something, but not for actually doing it.  Much may, therefore, turn on what is meant by “unlawful” or “what you have no legal right to do” in this context.  A threat to commit a tort is a threat to use unlawful means.

27.  A claimant is entitled to quia timet relief to stop threats being made against him, where intimidation is demonstrated.  In seeking such an injunction, the applicant must rely on past acts to show likely future conduct.  The previous acts must be of the particular nature of conduct which is sought to be restrained.

B.3    Interlocutory Injunctions

28.  As is common ground between the parties, the usual principles applicable to the grant or refusal of interlocutory injunctive relief – often referred to as the American Cyanamid principles – are trite.

(1)  First, the applicant must show that there is a serious question to be tried, meaning that the claim is not frivolous or vexatious.

(2)  Secondly, the applicant must show that damages would not be an adequate remedy in respect of any loss which he might suffer by reason of the defendant continuing to act unrestrained pending the trial.

(3)  Thirdly, it must be asked whether the defendant would be adequately protected by the applicant’s cross-undertaking in damages, should later be found that the plaintiff should not have been granted an interlocutory injunction.

(4)  Fourthly, if there is doubt as to the adequacy of the respective remedies of damages, the court will consider where the balance of convenience lies.

29.  In modern jurisprudence, the court will perform a balancing exercise to consider where the greater risk of injustice lies, comparing (a) the risk arising from the refusal to grant an injunction if it later turns out that an injunction ought to have been granted, against (b) the risk arising from the grant of an injunction if it later turns out that the injunction ought to have been refused.

30.  Part of the exercise necessarily enables the court to take into account the strength or weakness of the parties’ cases in the exercise of the discretion to grant or refuse injunctive relief.  For example, if the court forms the view that at trial the applicant would or would probably succeed in obtaining a permanent injunction, that may be a powerful consideration in the grant of the interlocutory relief sought.  Similarly, if the court forms the view that at trial the applicant would or would probably fail to obtain a permanent injunction, that may be a powerful consideration against granting such relief.

31.  However, the court must be careful not to take the assessment of merits too far at such an early stage in the proceedings. Indeed, it is also settled that it is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, or to decide difficult questions of law which call for detailed argument and mature consideration.  That may be particularly so in a case such as the present where there is a significant factual dispute as to what was meant and understood by the words used between the parties in communication, and what was the purpose of those communications.

32.  Ordinarily, the prospects of success on the claim are investigated only to a limited extent.  As it has been put, so long as there is a serious issue to be tried, it does not matter whether the court thinks that the plaintiff’s chances of success at trial are 90% or 20%.  Where the opposing party seeks to show that there is no serious issue to be tried, the threshold is high, as it effectively requires that party to demonstrate that the claim should be struck out.

33.  But there are cases in which an applicant for interlocutory relief faces a higher burden.  The usual example is where the grant of interlocutory relief would in effect be the grant of final relief.  In such circumstances, such relief would unlikely be granted unless the court is persuaded that the applicant is more likely than not to succeed on his claim to that relief at a trial.

34.  The question arises in this case as to whether there is any higher burden on the applicant than merely establishing a serious issue to be tried, where the injunctive relief sought by the plaintiffs impinges on the defendant’s freedom of expression.

35.  By reference as to harassment cases decided in the UK, Mr Kirpalani submits that applicants seeking interlocutory injunctive relief on a harassment claim must show that they are more likely than not to succeed at trial.  He relies on the decision of Nicklin J in Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB) at §§57-60. Those passages refer back to the decision of the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 and to the provisions in section 12 of the Human Rights Act 1998 (“HRA”).

36.  The HRA introduced into the law of the UK the concept of Convention rights.  Section 12 made special provision regarding one of those rights, namely the right to freedom of expression.  Section 12(4) requires the court, when considering whether to grant relief which if granted might affect the exercise of the Convention right to freedom of expression, to have particular regard to the importance of that right.  Section 12(3) also imposes a threshold test which has to be satisfied before a court may grant interlocutory injunctive relief:

“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” (emphasis added)

37.  In the Cream Holdings case, the House of Lords considered what was meant by the word “likely”.  First, it was noted (at §12) that the word has several different shades of meaning, and even read in context that meaning is not always precise.  It is capable of encompassing different degrees of likelihood, and its ordinary usage is often sought to be clarified by the addition of qualifying epithets as in phrases such as “very likely” or “quite likely”.

38.  The statutory provision has to be interpreted against a familiar legal background, including the approach following American Cyanamid Co v Ethicon Ltd [1975] AC 396, which established that the court must be satisfied that the claim “is not frivolous or vexatious; in other words, that there is a serious question to be tried”.  When the Human Rights Bill was under consideration by the UK Parliament, concern was expressed at the adverse impact the Bill might have on the freedom of the press.  This particularly arose under Article 8 of the Convention, guaranteeing the right to respect for private life.  As the House of Lords identified (at §15), the concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8.  Section 12(3) was enacted to allay those fears, intending to buttress the protection afforded to freedom of speech at the interlocutory stage.  It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline.

39.  But, the House of Lords also recognised that in applying the “likely” criterion to all cases of interim prior restraint, that is in imposing a criterion of general application, Parliament was painting with a broad brush and setting a general standard.  But a threshold of “more likely than not” in every case would not be workable in practice, for example creating results Parliament could not have intended such as precluding the court from granting an interim injunction in some circumstances where it is plain that injunctive relief should be granted as a temporary measure.

40.  Reference was made (at §§17-18) to a two-part situation.  One is where – in the circumstances of some urgency – a judge is not in a position to decide whether on the balance of probabilities the applicant will succeed in obtaining a permanent injunction at trial.  Hence, it cannot have been intended that the section would preclude a judge from making a restraining order for the period needed for him to form a view on whether on balance of probability the claim would succeed at trial.  The second would be when the judge was able to form such a view.

41.  But the House of Lords also recognised (at §§19-21 and 23) that the matter went further than these procedural difficulties.  It would be extraordinary if an applicant, whose case might depend on a disputed question of fact on which he has an arguable but distinctly poor case, would automatically fail to restrain publication until the disputed issue of fact can be resolved at trial, regardless of the seriousness of the possible adverse consequences of publication.  In some cases, application of a “more likely than not” test would achieve the antithesis of a fair trial.  Therefore, some flexibility is essential.  Hence, ordinarily, a success likelihood higher than the commonplace American Cyanamid standard might be applied, but the court is permitted to dispense with the higher standard where particular circumstances make this necessary.

42.  There can be no single, rigid standard governing all applications for interim restraint orders.  Rather, in any given case, the court should proceed on the basis that it will not make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.  Such circumstances might include where the potential adverse consequences of disclosure are particularly grave.

43.  Mr Kirpalani also referred to defamation cases, where in Hong Kong the freedom of expression is engaged, and (he said) the higher threshold for interim interlocutory relief is adopted: see, for example, Tsang Kwong Chiu Kevin v Tang Wing Hang [2018] HKCFI 1479 at §§17-23.  But, actually, Anthony Chan J specifically noted Court of Appeal authority that the grant of an interlocutory injunction in a defamation case triggers the American Cyanamid principles, although “special considerations” are to apply.  The justification for those special considerations is the importance of free speech.  This seems to me to be simply a requirement to give appropriate weight, when weighing the grant or refusal of an interlocutory injunction in a defamation case, to the potential impinging on the freedom of expression.

44.  Ms Booth argued that the Khan case, and the higher threshold, has no application in Hong Kong.  First, there is no equivalent statutory provision to section 12(3) of the HRA.  Secondly, there is no need to import some higher threshold because the court can properly take into account competing freedoms when conducting the balancing exercise inherent in all applications for interim injunctive relief.

45.  I agree.  Absent a specific statutory provision which requires the court to be satisfied as to a particular sufficiency of merit in an applicant’s case, and outside recognised circumstances where a higher threshold might be required, the relevant considerations are wholly available within the existing American Cyanamid approach and context.

46.  Therefore, I think Mr Kirpalani is correct on his alternate case, that even on the usual threshold there are several matters which might need to be taken into account when weighing whether or not to grant injunctive relief in harassment cases.  Those matters include (1) some assessment of the strengths of the parties’ cases; (2) recognition of the settled principle that the more serious the allegations, the stronger the evidence must be for them to be accepted; and (3) recognition that the effect of granting injunctive relief might be to restrict a person’s freedom of expression, such that the balance may require a stronger case supported by cogent evidence.

47.  That last point is really to paraphrase the trite position which flows from the words of section 21L of the High Court Ordinance Cap 4 that injunctions are to be granted only when it is “just or convenient”.  That phrasing identifies the ultimate overriding test.  Hence, interim restraint orders are unlikely to be granted unless the court is satisfied, against all the circumstances including the applicant’s prospects of success at trial, that the imposition of the restraint is justified as being just and convenient.  The greater the impingement on a freedom of the sort usually regarded as a fundamental right, the greater it may be necessary for there to be a sufficiently meritorious claim by the applicant.  But that depends on the circumstances of the case, and material rights and freedoms and the potential adverse consequences in a particular case may pull in different directions.  It would not be helpful for the court to fetter its approach by setting some minimum standard for every case (higher than a serious issue to be tried), which might preclude taking into account and properly weighing and balancing all of the circumstances of the individual case.

B.4    Full and Frank Disclosure

48.  It is well settled that, in making an ex parte application, the applicant has the duty to make full and frank disclosure of all facts and matters material to the application.  Materiality is to be decided by the court, and not by the assessment of the applicant or his legal advisers.

49.  The duty extends to making proper enquiries before the application, as the duty of disclosure applies not only to material facts known to the applicant but also to additional facts he would have known if he had made such enquiries.  The duty also extends to bringing to the court’s attention any points that could be made by the respondent, even if not yet made, at the time of the ex parte application, unless the point is not one which (a) the respondent would reasonably be expected to raise in due course or (b) which can be dismissed as without substance or importance.

50.  The duty of full and frank disclosure is an onerous duty.  It arises from the rule that an application which is made, and relief which is granted, in the absence of one party (the party against whom the relief is granted) must be in rare or exceptional circumstances.  But the rule cannot be allowed itself to become an instrument of injustice.  This means that courts will be astute to respondents merely invoking the mantra of material non-disclosure, where there are slender grounds for the argument, and it may simply be an attempt to deflect from the substantial merits or balances in the case.  It also leaves open to the court a discretion to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure on the original ex parte application.

51.  The principles relevant to the exercise of that discretion were considered by the Court of Appeal in Excel Courage Holding Ltd v Wong Siu Lai (unreported, see a CV 28/2014, 30 May 2014), and where it adopted the following guide:

(1)  If the court finds that there have been breaches of the duty of full and frank disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial.

(2)  Notwithstanding that general rule, the court has discretion to continue or re-grant the order.

(3)  That jurisdiction should be exercised sparingly and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.

(4)  The court should assess the degree and extent of the culpability regarding non-disclosure.  It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order.  Equally, there is no general rule that a deliberate breach will attract that sanction.

(5)  The court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court.  In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.

(6)  The court can weigh the merits of the plaintiff’s claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle.

(7)  The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice.

(8)  The jurisdiction is penal in nature, and the court should therefore have regard to the proportionality between the punishment and the fence.

(9)  There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.

52.  It is also correct that when a party has been found responsible for material non-disclosure, that party will generally be ordered to bear costs, which may be ordered on an indemnity basis if the non-disclosure was deliberate.

53.  Mr Kirpalani referred me to Gee on Commercial Injunctions (6^th Ed) at §8-007 which states:

“It is the duty of solicitors and counsel on making an application for relief on an application made without notice, …, to make a full note and to provide it as soon as possible to the respondent, whether or not he has asked for it, or any other person affected by the relief, so that they can know what happened and on what basis relief was granted. The note should include any points or queries that have been raised by the judge.”

54.  I agree that that may be best practice.  But if the application is made with the benefit of and on the basis of a skeleton argument, meaning within the ‘four corners’ of the points identified in the skeleton argument, such a note may not be necessary to be provided to the respondent.  The standard form of injunction order in Hong Kong extracts an undertaking from the applicant requiring him to serve on the respondent various documents as soon as possible, including the skeleton argument used on the application.  Obviously, the point of requiring that is so that the respondent can know what happened at the hearing and on what basis relief was granted.

55.  But there are cases in which applications are made and points arise which had not been canvassed in the skeleton argument. Typically, those would be points raised by the applicant which had not made it into the skeleton argument because of the urgency in preparation, or by the judge hearing the application.  In those circumstances, I think that the solicitors for the applicant should serve their note of the hearing on the respondent, in addition to the skeleton argument used at the hearing.  It is only with the benefit of that note, if properly taken, that the respondent can be told fully what happened at the hearing and the basis of the relief sought.

56.  All applicants for ex parte relief, and the solicitors and Counsel acting for them, should understand that a proper note of the hearing must be kept; and they should consider whether that note must be provided to the respondent so as fairly to identify the full picture of what happened at the hearing on the basis of the relief sought and granted.  It is in my view wholly insufficient for those additional points to be canvassed merely in the applicant’s skeleton argument for the inter partes hearing which seeks the continuation of the ex parte order, because that skeleton is usually filed only shortly before the inter partes hearing and often many days after the respondent has been served with the other ex parte materials.

57.  The duty on the party making an ex parte application to provide full and frank disclosure is an ongoing duty, which continues at least until the effective inter partes hearing.

B.5    Private Hearings and Anonymity Orders

58.  The starting point and general rule of open justice is that judicial proceedings are held in public and the parties are named in judgments.  It is well settled that open administration of justice is a fundamental principle of common law: see, for example, ATV v Communications Authority [2013] 2 HKLRD 354 at §19, as further approved in TCWF v LKKS [2013] HKCA 684; see also Re BU [2012] 4 HKLRD 417.

59.  The principle is of importance, from the perspective of administration of justice, for a number of reasons.  Amongst them are that: the public nature of proceedings deters inappropriate behaviour on the part of the court; it maintains the public’s confidence in the administration of justice; and it makes uninformed and inaccurate comment about proceedings less likely.

60.  In the TCWF case, the Court of Appeal also approved and set out some of the provisions to be found in the UK Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003, which deals with the proper approach to the general principle of open justice regarding any application for interim injunctive relief to restrain the publication of information in a variety of situations.

61.  Derogations from the general principle of open justice can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Any derogation granted, where justified, should be no more than strictly necessary to achieve the purpose.

62.  The grant of derogations is not a question of discretion.  It is a matter of obligation, and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test.  Any question of derogation from open justice is always fact specific.  The burden of establishing any derogation from the general principle lies on the person seeking it.  It must be established by clear and cogent evidence.

63.  Where an applicant fears risk to life or safety, whether of themselves or others, it must be clearly articulated.  Where there is a proper articulation, that is a basis to have proceedings and anonymized.

64.  The court will have regard to the respective and sometimes competing rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

65.  There is no general exception to open justice where privacy or confidentiality is in issue.  Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of exclusion of the public can justice be done.  Anonymity will only be granted where it is truly necessary, and then only to the extent that it is necessary.

66.  It is also clear that there are various matters which do not by themselves justify any restriction on open administration of justice, including that publicity might lead to embarrassment and inconvenience or damage to professional reputation, or that publicity might lead to economic damage, even very severe economic damage.

67.  However, open justice is a means to an end. Where the open administration of justice would frustrate the ultimate aim of doing justice, that would be the most important, if not decisive, consideration to be taken into account when balancing the relevant interests, rights and freedoms involved.  It may be necessary to depart from the general rule where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice.  Where the disclosure of information would carry with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary.  The court will be astute not to deter a party from pursuing his case either freely or at all because bringing the case might jeopardise his safety or other well-being.  That would also be to jeopardise the administration of justice.

68.  Further, where restrictions on open justice are justified, this may take many forms.

69.  Ms Booth relied, amongst other cases, on X v Y [2014] 5 HKLRD 823, a case in which the plaintiff was a known individual in Hong Kong who had an intimate relationship with the defendant. After the relationship ended, the plaintiff received threats from the defendant that she would disclose evidence of their relationship to the plaintiff’s family and the public.  On the grant of the ex parte injunction restraining the defendant, it was also ordered that all further hearings would be held not open to the public, that the court file should be sealed and that the parties should be referred to anonymously by letters.  The court also held that the continuation of any aspect of those orders could properly be considered from time to time in light of the then prevailing circumstances.

B.6    ‘Gagging’ Orders

70.  Gagging, or anti-tipping-off, orders are also exceptional remedies.  The jurisdiction to grant such orders comes from section 21L of the High Court Ordinance.  But such orders will only be granted when there is clear and cogent evidence supported by compelling reasons.  What amounts to compelling reasons will depend upon the facts of the case, but might include the real prospect that were a respondent or non-party to be notified they would take steps to defeat the order’s purpose.

71.  It must be remembered that depriving a party affected of the opportunity to investigate facts, in circumstances where that party may incur personal liability, is a serious intrusion into what otherwise would be a party’s basic rights.  It also, in a sense, condemns the person identified as a wrongdoer without a balanced picture being provided to the court at that stage: see A Co v B Co [2002] 3 HKLRD 111 at §40.

72.  The court must balance the prejudice caused to the claimant if a gagging order is not granted and the prejudice caused to the other party, or third party, if it is.

73.  If a prohibition of the disclosure of making the injunction is included in an order for the purpose of preventing tipping off, and if the order provides for a return date (as the Practice Direction envisages), then the prohibition on disclosure may normally be expected to expire once the alleged wrongdoer has been served with an injunction, or at the return date.  Therefore, it is to be expected that there would be a clear and cogent reason to justify continuation of the order beyond the return date: see Terry v Persons Unknown [2010] EWHC 119 (QB) at §§139-142.

74.  It is neither necessary nor helpful to seek to identify what clear and cogent reasons could justify continuation of such an order beyond the return date.  But, in general terms, justification might be found in the continuing (that is, not spent) purpose of the original order, in a way which cannot be dealt with in some other acceptable and less-intrusive manner.

C.   Factual Case and its Development

C.1    Factual Introduction

75.  This is a case in which it may be helpful to consider perhaps more of the detail of the factual material than is usually necessary on an argument about interlocutory injunctive relief.  The way in which the factual case has developed through the sequential filing of evidence may be important in light of the allegations made against X and Y that they have committed serious material non-disclosure.  It is also necessary to be able to form some provisional view of the merits, particularly where Mr Kirpalani submits that X and Y cannot even make out that there is a serious issue to be tried on their case.

76.  The liberal use of swear words in the original documents – not least one of Germanic origin starting with a fricative – has been lightly censored in this Judgment by use of asterisks for some letters in the word.

C.2    Ex parte Evidence

77.  The ex parte application was led by X1 and Y1.  For obvious reasons, the main part of the narrative was provided by X, who (after an introductory section) divided X1 into sections with headings, being:

(1)  ‘Background’: §§4-26, starting with her personal particulars, meeting Z, his character, and dealing with material events from around January 2019 until February 2020; and

(2)  ‘Recent acts of Intimidation and Harassment’: §§27-35, dealing with matters from mid-February 2020 until shortly before the making of the ex parte application.

78.  I do not think it necessary or helpful for present purposes to identify all details of the evidence, but I can set out those matters which seem to me to be of some importance – with some further details added later.

79.  In the ‘Background’ section of X1, X made the following points, some parts quoted verbatim:

(1)  X was born and raised in a traditional Muslim family, where faith and loyalty to marriage is highly valued.

(2)  X and Z have been colleagues since November 2018.

(3)  Z “comes across as very charming and genuine, but he is highly aggressive and quick to anger when triggered.  He can be very intimidating and forceful at times.”  Nevertheless, X found Z to be charming as a friend, and a “friendly camaraderie” developed.  They and another friend started to “hang out from time to time”.

(4)  In January 2019, Z sent X an apparently flirtatious text saying “I keep using you as a benchmark to other girls I meet. Obviously no one can compare.”

(5)  In February 2019, X was going through a hard time in her marriage.  Fights and disagreements between X and Y “intensified somewhat … and the possibility of divorce arose”.  Y found Z’s text and accused X of cheating, which she denied.  Y did not believe her, and X and Y “never stopped arguing”, causing X to feel “utterly heartbroken and vulnerable at the time”.

(6)  Z started to spend more time with X and was extremely supportive and friendly.  Z kept dropping hints that he had feelings for X, and they began to spend more time together as friends.  Later in February/March 2019, Z made more frequent expressions of romantic feelings and intentions towards X.

(7)  “While I might be polite in my answers and overly friendly and [Z] might have perceived it as “flirtatious” or construed it as “approval”, I never intended it or had any interest beyond our friendship.  [Z] was a colleague … and saying anything less than amicable would have created conflict and an uncomfortable situation at the workplace.  While his flattery was a welcome change from criticism I was receiving [at] home, he could never have triggered me to want to be intimate with him.”

(8)  In April 2019, X could “no longer bear the stress of living under the same roof with” Y, and so temporarily vacated the matrimonial home for, as it turned out, six days.  Z offered her a place to stay at his home, which she accepted, until she could find a place of her own.

(9)  At first, whilst X was staying at Z’s apartment, he respected her privacy and remained a supportive friend.  But he offered her sleeping pills and encouraged her to smoke weed to help relieve insomnia, anxiety and stress.  This was not something she was proud of, and would have been ashamed if Y had found out.

(10)  Z gradually pressured X into engaging with him intimately.  The “mixture of all the drugs and the vulnerable emotional state” X was in created a lapse of judgment on her part, which she regretted the following day.  X recognised not only the mistake, but that she had betrayed Y and the values she had cherished since childhood.  X had an emotional breakdown, and told Z that nothing should have happened because she was married.

(11)  Z’s reaction was to get extremely angry, telling X “not to play the victim game”.  Z swore at X, saying things like “don’t f*** with me or this will come out”.  Z insisted that what had happened was consensual.

(12)  X recognised that Z was unstable, and that she “had to deal with the situation in a calm and meek manner so as to avoid further confrontation”.  Trying to be gentle and nice, she was allowed by Z to go home, which she did the following day.

(13)  X decided to reconcile with Y, as she wanted to be faithful to the marriage.  But she was haunted by what had happened and felt extremely anxious.

(14)  Z started to behave in an anxious and erratic manner.  Z offered to help X get out of her marriage to be with him.  Z started to insinuate that if he felt like he had been used or played, he would release the truth to Y and colleagues.

(15)  Z’s “gradual build from first suggesting that he would help me, to insinuation, to consistent and repetitive threats caused me to fear that [Z] would publicise what had happened between us and that the same would ruin both my marriage and reputation, socially and professionally”.  X “started to feel emotionally coerced”, but accepted that as a better outcome than damaging Y’s honour and family dignity.

(16)  When Z was not happy with X, he gave her “attitude”, and implied in her mind that she had to “be nice and appease him” to succeed in her job and to function at work.  To avoid an abrupt cessation of interaction which might trigger an aggressive response from Z, X adopted an approach of telling him she could not be with him because of her situation.  X “felt that if he believed that I wanted to be with him but it was impossible for that to ever happen, it would not trigger an outburst”, as opposed to her saying that she chose to be with her husband over him.

(17)  Between June and December 2019, X focused on rebuilding her marriage while trying to “manage [Z] out of my life safely” and make sure he would not get upset and publicise the encounter between them. That meant that X had to appear meek and submissive whenever it appeared that Z was on the verge of having an outburst.

(18)  In May 2019, X met Z a few times alone at a hotel in Macau.  Z had been taking drugs and was “acting in a particularly unpredictable and psychotic manner” towards her.  X “submitted sexually to him to avoid escalation”.

(19)  X saw Z privately in September and December 2019 at hotels in Central during work days for an hour or so.  On both occasions, Z booked the hotel rooms and insisted on talking in private, saying it was not about sex.  However, on one occasion, X “had to be intimate with him as if it was a trade-off to buy my peace and save my marriage”.

(20)  During May to December 2019, X was “consistently anxious, intimidated, and in a state of fear”.

(21)  X and Y continued to argue about trust issues, as Y “always had an intuition and was always seeking a way to validate it”. Feeling the rope closing around her neck, X decided to move out of the matrimonial home into a serviced apartment in January 2020, needing space and time to wait to figure out how she could “stop living a lie”.  X and Y engaged in couple therapy sessions scheduled from January to February 2020.

(22)  When Z came to visit her, X realised the opportunity to put an end to the “long drawn out pressured situation” she was in.  X “pretended to play along” with Z, but made various demands thinking that if Z felt the relationship would not work going forward, he would let her go without releasing any information to Y or publicly in general.

80.  In the section of X1 headed ‘Recent acts of Intimidation and Harassment’, X made the following main points:

(1)  In a brief conversation towards mid-February 2020, X and Z agreed that they could not be in a relationship.

(2)  After a small misunderstanding at work, on 4 March 2020 Z texted X: “Happy to go down this route … I’ve nothing to lose – wrong person to make an enemy out of”.  Z then blocked X on Whatsapp.  When X asked him, via text message, why Z had become a scary resentful person making threats over petty things, Z responded that he would never threaten her, that she should practice what she preached around being “petty”, but she could choose to behave how she liked.

(3)  As one of the exhibits to X1 identifies, when X asked how she was trying to make an enemy of him, and explained what she had done at work, Z responded that he didn’t “threaten” her but that he was giving her notice.  She would not have to put up with him much longer so they should “just stay away from one another”.  Later he told her not to try any “c***ish moves” and that he would not tolerate anyone trying him.

(4)  On 12 March 2020, after work, X discovered that Z had earlier sent a message to her telling her that his job had become untenable and that he would tell their superiors why he could no longer remain in the team.  Though not explained in the body of X1, the exhibited messages identify that Z went on to say that he did not really plan to go into detail with the superiors other than that he could no longer work with X.

(5)  However, in the following message Z said “But I’m feeling extra honest so I was also thinking of sending your husband some screenshots too…”.  X was terrified and extremely panicked by this threat, so immediately unblocked Z on her phone and proceeded to try to persuade him not to execute his threats.  She asked to speak to him in person to settle the issue but he refused and told her not to worry, he would not say anything.

(6)  The next interaction was on 17 March 2020, when Z messaged X saying “You’re really pathetic, I know all your tricks”.  X was accused of telling people things about Z, which she had not done, and Z said he would be forced to retaliate.  X was terrified, and begged Z to speak to her to tell her what it was all about all, and that she was prepared to resign from her job if that would end the nightmare.  But Z “continued his threats and harassment.  He told me he had nothing to lose and he was prepared to expose us”.

(7)  On 7 April 2020, Y received an email titled “F*** face”, with attached screenshots of messages between X and Z.  The email was sent from a disguised name, but it was clearly from Z.  From that and subsequent emails, Z “executed his threats, completely reckless about how this would ruin” X and her family.  Z continued to make threats, including that he would post videos, which she had no idea of being recorded, and make information about them public in 5 days from 10 April 2020.

(8)  X spoke to Y about everything that had transpired over the course of several months and how Z had “extorted” her.  X could not bear to live under the constant fear and pressure.  Z would not stop making threats, seeking to intimidate and harass X “to extort whatever he wishes.  He will continue to hold this over my head until he has his ways”.

81.  In Y1, Y explained his version of events, broadly making the following points:

(1)  First, Y gave some background, including of the “challenging” nature of his marital relationship with X.

(2)  Whilst Z had appeared to be a good friend of hers since they met in 2018, there was some expression of resentment and anger from his work attitude.

(3)  In early 2019, Y began to realise that X “was not as engaged as before”.  At some point in April 2019, Y “randomly read” the flirtatious message from Z to X on X’s phone, but X denied being unfaithful.

(4)  Because of the difficulties in their relationship, in April 2019 X decided to leave home.  X said she was staying with a female friend, but later confessed she was actually staying with Z at his apartment.  With the assistance of X’s father, X decided to move back home after six days, but remained “extremely unhappy and anxious all the time”.

(5)  When X mentioned that Z had offered her weed to help with anxiety, why became angry and sent messages to Z from X’s phone telling him to stay away from his wife.  It may be relevant that in one of the messages sent by Y he called Z “f*** face”.

(6)  There were other incidents concerning X’s behaviour that made Y “suspect something was wrong”.  She was “at times distant and seemed to be extremely stressed” and Y knew “something was burdening her and that there was some kind of fear that was preventing her from engaging in our marriage fully”.

(7)  This was exacerbated around October and December when X had encounters with Z.  Not being able to understand the behaviour caused frustration, and X and Y agreed to temporarily separate in January 2020, and to try couples’ therapy.

(8)  The therapy went well, and X agreed in mid-February 2020 to return home in early March, which she did on 7 March 2020.  Everything seemed to go back to normal, and X was “a lot happier and more engaged in the marriage”.

(9)  Unfortunately, on 7 April 2020, Y received the “F*** face” email on his personal account, which sent a “threatening message” asking “…. would you like to know what your wife really gets up to???”. Two screenshots were attached, one being the text messages which Y had sent Z using X’s phone, the other being another text exchange between X and Z. Despite the use of a false name, Y genuinely believed that it was Z who sent the email.

(10)  A similar email was sent by the same person on 10 April 2020, this time to Y’s work email address.  This led to an exchange of emails, amongst which Z indicated he had “plenty” of “camera footage” about X, and that the “information would be made public … no further contact needed”.  In the last email sent from Z the threat was reiterated that the information will be made public.

(11)  Y was deeply disturbed by these emails with Z. The messages made X come forward and reveal the truth “that she was taken advantage of by the defendant in 2019”.  The treatment of X by Z “made her feel as if she owed him sex or needed to reciprocate his overture and affection”.

(12)  X also told Y “that she was being worn down by [Z] who repeatedly exploited her emotional distress by forcing her to spend time with him or alternatively he would ruin her life by sharing their relationship with me/the public”.  Because X’s fear was greater in her mind than the act itself, “she continued being subjected to sexual harassment and coercion to keep their relationship secret to protect our marriage and our reputations”.

(13)  As a husband, Y finds the story “tormenting, and difficult understand”.  But he has sympathy for X “for having been a victim of sexual coercion”.

(14)  Y is concerned that Z will take further steps to send messages, emails, pictures and/or recordings, to his employer or friends and colleagues “in order to cause extreme embarrassment” to himself and X.

82.  I think the overall picture painted by the evidence as presented for the purposes of the ex parte application is, and was, as follows.  Whilst X was vulnerable as a result of marital tension between her and Y, Z took advantage of her in persuading her to be intimate.  Despite her immediate regret at the intimacy, her expression of that to Z caused him to become aggressive.  So concerned was X that Z might reveal the infidelity to Y, and so awful would be the consequences for X and her family following such a revelation, that she did everything possible to keep Z ‘on side’ and not to provoke him to reveal the infidelity.  Over much of the period from April 2019 to February 2020, X felt obliged – even “extorted” – to maintain contact with Z, to the extent of succumbing to further acts of intimacy.  This contact was maintained and those acts were performed necessarily reluctantly, and only as a result of harassment and intimidation.  There was no genuine affection for Z, and in reality X wished to maintain her marriage to Y.  The impression was also given that no-one else, including no-one at work, knew about the relationship.  After an eventual amicable de-coupling seemed to have been achieved in February 2020, X was surprised by the renewal by Z of his aggression and threatening behaviour following a small understanding at work.  That escalated to include Y, when Z sent him emails. 

83.  Indeed, in Ms Booth’s skeleton argument for the ex parte application she gave as a summary (§4) that the acts of intimidation and harassment against X initially began in April 2019 and grew increasingly more serious over time.  It was believed that Z had ceased such behaviour in March 2020, but Z then approached and began harassing and threatening Y by sending a series of emails to both his personal and professional email accounts.

84.  The ex parte skeleton argument was also broken down into sections with headings which included ‘Acts of Intimidation and Harassment since April 2019’.  In that section, and by reference to various paragraphs of the evidence, it was submitted that:

(1)  X was forced to interact with Z almost daily, and could not avoid him, and was consistently subjected to his harassment, causing immense ongoing anxiety and emotional distress (§12).

(2)  From May to December 2019, X was repeatedly coerced by Z’s threats and harassment to engage with him (§13).

(3)  On an occasion in December 2019, X was forced to submit to Z sexually again out of fear (§15).

85.  To be fair, the next section of the skeleton argument has the heading ‘Recent Acts of Intimidation and Harassment’, and it deals with the events since 4 March 2020.  Those events are the messaging between X and Z, and the emailing between Y and Z.  So it might be fair to point out that both the evidence filed for the ex parte application and the skeleton argument drew some distinction between the events up to February 2020, and the more recent events from March 2020.

86.  As to matters of full and frank disclosure, the only point covered was that Z might deny any involvement in the intimidation and harassment dealt with in the skeleton.  However, this point was clearly focused on the emails sent under the false name, as the skeleton argued that Z is clearly identifiable as the individual who coerced and threatened X for several months, so must be the source and origin of the emails and their attachments.

C.3    Z’s Evidence in Response

87.  In Z1, Z gave a summary of his case which included:

(1)  The allegations made that Z is a blackmailing extortionist and sexual predator are untrue, disgusting and appalling.  X has mischaracterised the true nature of the relationship.

(2)  In fact, X and Z shared a consensual relationship from February 2019 to February 2020, which was an open secret amongst work colleagues.  Not once during the one-year relationship did X ever say that Z should leave her alone, or even that Z or his messages made her uncomfortable.

(3)  The relationship broke up upon Z’s realisation of incompatibility for the long term, after which X became hostile and created significant workplace problems, including trying to assume his responsibilities whilst he was sidelined.

(4)  Under workplace stress from X’s lies, Z approached Y to tell him that X had been having an affair. Y egged him on to share with him more concrete evidence of the relationship.

(5)  Z never had any intention to post anything publicly, nor did he in fact have any video to post.

88.  As to some more of the detail Z’s evidence, Z says it identifies the following, with again some evidence quoted verbatim:

(1)  X painted a clear picture that she was in a loveless marriage.  Their friendship grew, moved to messaging and flirtation, and the start of the relationship.  This happened following a work event at a nightclub, when they danced and kissed, giving rise to work gossip.  Z took X home to her apartment and stayed for an hour or so (Y being away on business at the time).  That evening gave rise to a realisation that things had changed between them, although the circumstances were complicated and caution was necessary.

(2)  In April 2019, X arrived at Z’s home with many of her personal belongings.  She asked to stay for a while.  Z says he did not offer her drugs, and did not get angry or swear at X or say any threatening words.  X told Z that her father had flown into town to convince her to save her marriage, and X sent Z a photograph of herself with her father (which Z exhibited to Z1).

(3)  Notwithstanding that X moved back to her matrimonial home, her relationship with Z continued to develop.  They communicated constantly, texting each other and meeting up in and out of work. As an example, on 25 April 2019, X texted to say “I miss you so much already”, “I love you so much”, “Going to sleep now. Hope you land safely. Love you”.

(4)  The incident in Macau followed X’s idea that she and Z might spend some time together, away from the limited opportunity in Hong Kong.  Much of their time together was spent in bed.  There were no drugs, and no altercation.

(5)  At work, X and Z met in conference rooms to share lunches, to kiss and embrace.  However, Y discovered the texts, and used X’s phone to send Z messages.

(6)  X decided she needed to cover her tracks better, and asked Z to help her alter her phone bills for April, May and June 2019. Z obtained a friend’s assistance for digital alteration of the PDF phone bills to replace references to his number with another number provided by X.  As an example, the June bill originally showed X making 22 outgoing calls to Z (13 of which were after 6pm), including one call when she was in Macau.  Two consecutive calls made by X to Z on 27 May 2019 at 20.29 and 22.04 are shown to have lasted 12 and 42 minutes respectively.

(7)  To facilitate more secretive communication, Z procured a ‘burner phone’, which became the primary mode of communication during office hours.  It was also used for ordering Uber rides to and from Z’s home.  X left the burner phone at the office.

(8)  X knew that Y had engaged a private investigator to follow her.  On one Sunday, when X had stayed at Z’s home until 11pm, X had told Y that she was in a pub in TST with work colleagues.  X therefore asked Z to go to the pub and retrieve any CCTV footage, before the investigator might find it.

(9)  The true nature of the relationship can be seen in the Whatsapp chat history between Z’s phone and the burner phone from 4 November 2019 to 20 December 2019 (which Z exhibited to Z1).  The chat history is full of X’s expressions and declarations of love, requests for time together and kisses, and expressions of remorse that X and Z are unable to spend as much time together as they would wish.  Those feelings are reciprocated by Z.  There is nothing coercive about the relationship, and if anything X is making demands. The chat history ends on 20 December 2019, as that is when X travelled to her home country for the holiday period.

(10)  Some examples of the chat history include:

[4/11/2019]

X: Hi

X: So good to hear your voice

X: How are you?

Z: Hey

Z: I’m good thanks

Z: And you?

X: Good too

X: Free for lunch?

Z: I had planned on going to bank

 

[4/11/2019]

Z: Have a good night! Love you

X: I want more

X: So much more

X: Love you too

 

[8/11/2019]

X: What did I say?

Z: You said I need a women in my life.. coming from most ppl that’s fine.. but not you lol

Z: Especially in front of the guys

X: Really?

X: I thought encouraging you to be with a woman would remove any doubt that im interested in you

X: Im so bad at this lol

Z: You are…

Z: □

X: -SS

X: I’ll leave this phone here

X: Love you

X: You look handsome in anything. Even mismatched stuff

 

[12/11/2019]

Z: I’m gonna miss you!

Z: You still consume all my thoughts

X: Me too!

X: You’re the love of my life

X: Im sorry it’s such a struggle

X: It should be easier

Z: You don’t have to be sorry

Z: It’s not your fault… I knew how complicated your situation was when I approached you

Z: I’m only sorry that I don’t get to be with you

X: Me too

X: I think about you all the time

X: And im crazy in love with you

X: Why dont I just follow my heart

X: Why do I care so much about other people’s happiness and approval

Z: Well, your life isn’t over yet and you can still do what you want.. but part of the reason you’re so amazing is that you’re such a sweet and considerate person…

X: Not when it’s at the expense of our happiness

X: Its just cowerdness I think

Z: I think you’re being hard on yourself a bit.. it’s a big change and the impact it will have on the rest of your life is quite big. Being afraid to make such a decision is only natural

Z: Easier for me as I’m so sure you’re the best person I’ve ever met and there’s nothing I want more than to be with you… and I’ve not got anything or anyone telling me how awful that is

X: I see you the same way. I love you so much and im just naturally drawn to you

X: Im just ao angry at myself that I don’t act on my feelings and juaat be with you

X: It iss simple for others. Why is it so complicated for me

X: Anyway I will go in a bit

X: I love you. Have a safe trip □

Z: Well, don’t overthink it… I’ll still be here on Monday

 

[13/11/2019]

Z: How you doing?

X: Im ok

X: Took forever to get to work

X: I thought about you all night

Z: Me too… I miss you already

X: I hate coming to this place when you’re not here

 

[13/11/2019]

X: I wish I could have dinner with you

X: And kiss you outside of aa meeting room

Z: Yea.. tell me about it…

Z: Ideally I’d want to spend rest of my life with you

X: Me too

Z: You’re all I can ever think about

X: How amazing would it be to wake up next to you every morning

 

[14/11/2019]

Z: I miss you!

Z: □

X: Missed voice call

X: Missed voice call

X: Missed voice call

X: You’re so cute □

X: Why do I love you so much??

X: Its annoying sometimes

 

[15/11/2019]

Z: I love you for so many reasons

X: Haha too late now

X: You already said it

Z: Hey!!

Z: Not fair!

Z: I wanna kiss you so much..

X: Me too

X: □

Z: I really want to see you outside of work

Z: Just lay down beside you all day

Z: □

X: Me too

X: I just want to be next to you

Z: You should just come over to my place…

Z: You really liked my room… said it reminded you of college remember

 

[21/11/2019]

X: Morning □

Z: Hey beautiful

Z: You look so nice today

Z: Like everyday

Z: □

X: You too □

X: I can’t keep a straight face when I look at you

Z: Are you free at 10? I’ve booked a room as I have couple private calls to make

X: Ok I’ll come in a bit

Z: Ok, I’m in [meeting room]. I only have the room until 10:30

X: When can I see you again?

Z: In like 15 mins?

X: Sure

Z: I can get a room now

Z: [room name]

Z: You’re so beat

Z: Beautiful

X: You too

X: I just love you so much

Z: I just think it’s because you can’t have me!

Z: I’m not all that great

X: No

X: I love you because you’re amazing

X: And super cute

Z: Haha

 

[26/11/2019]

X: Morning

X: Missed your face

Z: Morning beautiful!

X: When can I see you?

Z: I have a room booked at 10:30, you free then?

X: Yes

Z: Okay, I’ll text you when I’m there

X: Ok

X: I have a reg at 11

Z: [room name]

Z: Love you so much! I really want to be with you

X: Me too □

 

[2/12/2019]

X: My phone will get mee in trouble

X: I dont know how to get rid of it

Z: Well… don’t call or text me from your actual phone

Z: Otherwise it will keep doing that

Z: □□□

X: Yea

X: Lunch?

 

[19/12/2019]

Z: I’ll get a table

X: Kisses before I go?

Z: Of course □

Z: Let me known when you’re free

X: Now?

Z: Sure

Z: I’ll get a [meeting] room

Z: [room name]

(11)  As to the December 2019 allegation, which Z regards as “tantamount to a rape allegation”, the truth is that X and Z spent time together in a hotel on 17 December 2019 before X was to travel over the holiday period.  The Whatsapp chat on that day contradicts X’s version of events.

[17/12/2019]

Z: And you can go straight up – 12^th floor, room 1201.. the room smells like man Nans house..  very romantic

X: No need for access card?

Z: Nope

Z: Sorry, take a right

Z: Up the hill

X: Ok

X: On my way. Hope im not followed

Z: I’m sure you’re fine, don’t worry about it

X: Right at 711?

Z: Yes, up a few steps and the hotel is on next former

Z: Corner

(gap in messages between 11.59am and 3.45pm)

X: My heart is still pounding □

X: Drinking camomile tea but no good

Z: Haha why!?

X: Guess im scared

X: Told you im a bad lier

Z: Maybe it was all the great love making □

X: Haha I wish

Z: What!!!!

Z: Can’t believe you!

X: As in I wish that’s what it was due to…

Z: Lol

Z: I love you

X: Make sure you give me a kiss before you leave

Z: Of course

(12)  X moved out of her matrimonial home after returning from the holiday break in January 2020.  She moved into a serviced apartment, and Z spent 3 to 4 nights a week there.  Because he spent so much time there, he added her address to his Deliveroo account.  The exhibited emails from Deliveroo show deliveries between 3 January and 21 February 2020, on ten days in January and five days in February 2020.

(13)  Z broke up with X via Whatsapp message around the last week of February 2020.  X “became angry and understandably so”, because he broke up with her after she left her husband despite his courting her while she was married.  She began sending messages which were “increasingly petty and insulting”.

(14)  There followed workplace issues including the small work misunderstanding on 4 March 2020.  The daily office politics, and the apparent derailing of Z’s upward trajectory in the office and making his life unbearable, culminated in the message on 12 March 2020 out of frustration and desperation.  It was a rage text sent in the spirit of the moment, and he later backtracked from it as can be seen from later messages on the same day.

(15)  Looking back, Z regrets the approach he took in the emails with Y.  But Z “merely wanted him to be aware of his wife’s affair”.  The use of a deliberately created email address was a “poor attempt to disguise” his identity in case the email was presented to his employers. But Y knew who he was.  The threats of posting materials on social media were made because Z wanted Y “to take me what I said seriously (i.e. that his wife was an adulteress).  But they were empty threats, and understood as such”.

(16)  The email chain exhibited to Y1 is incomplete, as some emails are missing.  They have been deliberately manipulated, for example to remove ones which make clear Z was not blackmailing or demanding any ransom.  In addition, in another email not disclosed by X or Y, Y himself started another chain by asking if Z was seeking “ransom money”, to which Z never responded.

(17)  The full email chain shows Y was trying to get Z to disclose more evidence of the affair, so “goaded and antagonised” Z by calling him names in an attempt to push him to provide him with the documents he wanted.

(18)  “I regret my choice of words and actions; I was just caught up in the moment of trying to prove my machismo and simply went too far with my trash talk.  I would never have posted anything, nor did I have any video to post.  I just wanted [Y] to take my claim of his wife’s unfaithfulness seriously and became aggressive when he would not take me at my word and was dismissive of me.”

89.  Clearly, Z’s evidence paints a fundamentally different picture from that put forward by X and Y, and in particular as regards the nature of the relationship between X and Z up to February 2020.  The relationship described is one of a genuine, consensual and mutual affection, even love – with willing and welcomed acts of intimacy.  If that were to be the case, it would identify a significantly different context against which to consider subsequent events.

90.  In Z2, Z complied with the undertaking previously given by him to file an affidavit listing all photos, recordings, documentation, and information in his possession, which contained the personal data of the 1^st and/or 2^nd plaintiff(s), save for genuine ordinary work communication.  Though the list was not accompanied by the actual photographs and documents, they are likely to be discoverable under various provisions of RHC Order 24.

C.4    X and Y Reply Evidence

91.  In X3, X emphasises as her main points that:

(1)  Z knew he could manipulate her with threats of exposing their encounter publicly, as he had threatened to do after their intimacy in April 2019, and he continued with this behaviour throughout the rest of 2019.  X says she perceived the threats as real and intimidating, and that Z had every intention to cause her and Y fear and distress.

(2)  X rejects the idea that she and Z had a consensual relationship and one that was an open secret amongst their friends and colleagues.  X says that is not true, but that she had to appear meek and submissive to avoid Z being upset.  She “felt coerced and had to submit emotionally and sexually to him”.

(3)  As there was no consensual relationship starting from February 2019, there was no formal breakup in February 2020.  X simply managed to put the inappropriate interactions to an end by leading Z “to feel like he was the one making that decision”.  X says she made no commitment to nor “express the intention to be in a romantic relationship with Z”.  Her lapse of judgment in April 2019 followed Z’s “relentless pursuit” of her, coupled with his support during her vulnerable moments.

(4)  As regards their communications, X says “all the engagements and messages exchanged between us since then were, on my side, born from a combination of fear of [Z] telling my husband about our encounter, and my efforts to make [Z] feel empowered and confident enough so that he would walk away from me peacefully without hurting or exposing me”.

(5)  It was Z who offered to ask his friend to change the phone number on the phone bills so that Y could not track their communications.  The number of calls between them shown on the phone bills is misleading because most of the calls were work oriented.

(6)  It was also Z who proceeded to get the burner phone and asked X to use it for their exchanges.  X did so, as she felt “compelled to”, “did not want to unduly upset him” and “continued to feel under pressure to comply with his demands”.

(7)  All intimate encounters at Z’s place or at hotels were initiated by Z.  X wanted to avoid the encounters as much as possible.  Each was a terrifying moment that left her “feeling distressed and troubled for a long time after each occasion”.

(8)  X did not try to damage Z’s career or usurp his role.  Rather, her own work had been complimented, and she was asked to take on further responsibility.

(9)  X told her boss about Z’s possible resignation, as he had been mentioning that to her since July 2019.  X only told the boss over the phone on 10 April 2020, when she asked the boss to intervene in the hope of stopping Z’s harassment.  X felt obliged to inform her boss, as Z mentioned he would post inappropriate materials on social media, and X genuinely thought he was going to act on his threats and then resign and leave Hong Kong.

(10)  The dispute between X and Z was work-related, and creates no excuse for Z’s behaviour towards Y.  Those actions suddenly to expose X to her husband at a time when Z felt insecure or upset by X is consonant with her position that she had been all along under threat and coerced by Z.

(11)  As to the suggestions of material non-disclosure, X has given the Court as much information as she has.  X deleted exchanges with Z from the burner phone before moving back to the matrimonial home in February 2020. She only kept some screenshots of their conversations for her own personal record.  She provided in X1 the information that she was able to and considered relevant.

92.  In Y3, Y denies any deliberate non-disclosure of emails between him and Z (using the false name), asserts that he produced what he “could retrieve and considered material to this matter”, and otherwise broadly reiterates his position as identified in Y1.

C.5    The F*** Face Chain of Emails

93.  From whichever side of the case one approaches the chain of emails exchanged between Y and Z, they make for unattractive reading.

94.  All emails were sent to and from Y’s private email address except email 2A, which was sent to his work email address.  The full chain is set out in the table below, with those in italics being the emails which were not exhibited by Y to Y1.

Email	Date (2020)	Time	Sender	Content
1	7 Apr	10.05am	Z	….. would you like to know what your wife really gets up to???
2A	10 Apr	6.37am	Z (to work email)	Would you like to know what your wife has been getting up to for the last year??
2B	10 Apr	6.49am	Z	Remember this? I can show you what NORMAL conversations looked like :) f*** face! (jpeg attached)
3	10 Apr	9.12am	Y	How did you get this? What is this about?
4	10 Apr	11.21am	Y	I see that you also e-mail to my work and seem serious about this, so I will take you seriously. Not sure what your motivation and what your objective is but i doubt my wife has enemies that despise her to this point and friends that would do this, but i am open ears to what you have to say.
5	10 Apr	3.14pm	Z	(jpeg attached)
6	10 Apr	4.29pm	Y	I cant see much from this… can you share more… who is sending it?
7	10 Apr	5.03pm	Y	If you have damning evidence, pls share.. i cant judge based in extracted txt… need full context
8	10 Apr	5.29pm	Z	….. already shared too much.. you should ask your wife. I never promised you anything.
9	10 Apr	5.40pm	Y	You are real f*** face! You think i will doubt my wife over trash like you?
10	10 Apr	5.53pm	Z	Lol…. doubt what you want!! Fact shall speak… opinions don’t matter.. your wife is a whore
11	10 Apr	6.06pm	Z	Seems like both you and your wife are cowards, I think social media is a better platform to disclose……….
12	10 Apr	6.41pm	Y	Your [nationality] mother is the whore. You stay away from my wife.
13	10 Apr	6.46pm	Y	Good luck [nationality] f*** face… you are just a rejected barking dog photoshopping stupid messages to blackmail my wife... my wife is too pure for your face
14	10 Apr	6.55pm	Z	Hahaha!!! No photo shop needed… I’ll tag you and your wife when I publicly post these… it’s funny.: she said she never had real sex before either??? Hmmm.. I mean talk about pathetic
15	10 Apr	6.59pm	Z	Go ask your pure wife what she was doing this exact time?!! Plenty of other times too (jpeg attached)
16	10 Apr	7.00pm	Z	Hahahah just tell your wife to leave me alone!! Please! She can’t get enough
17	10 Apr	7.14pm	Y	Whatever dude… if you had smoking gun on her you would have shared it... you just a low life miserable rejected trash… disappointed after you confessed your love to her and turned you down… we are happily married and you just wasting your time… i know where my wife comes from and what her values are and also i know what people like you are… you wasting your time
18	10 Apr	7.24pm	Z	Don’t call me dude you old cuck… It’s okay, I’ll be sure to post you and your wife on social media when I post the videos Rejected trash hahaha that’s exactly what I view your wife as hahah Pussy boy, don’t try step out of your lane… it won’t end well. Cuck!! Hahahahaha
19	10 Apr	7.29pm	Z	Tell yourself whatever you like… you will never convince your subconscious nor alter the truth. There’s camera footage to suggest I’m correct Plenty of it!
20	10 Apr	7.40pm	Y	F*** face trash suits you better…. you are just a lost f***ing trash growing up on the streets as my wife described you… obviously your […] parents have done terrible job… you cant even handle rejection….. hiding behind e-mail and photoshopped messages like a f***ing cockroach,… i am not degrading and wasting my time with psychos like you…… you dont know anything about me and i can tell you f*** face, that you will pay high price if you keep lying about my wife and threatening her
21	10 Apr	7.52pm	Y	And This is when you ask for me Ransom money? It wont work… good luck to you.
22	10 Apr	9.07pm	Y	F*** face! Real coward… too worried about your job lol.. one call from your boss shuts you down.. what a f***ing coward
23	10 Apr	9.09pm	Z	…. let’s see.. give it 5 days
24	10 Apr	9.10pm	Z	Videos will be posted
25	10 Apr	10.35pm	Y	Hahah… it takes you 5 days to create fake video.. what a looser
26	10 Apr	11.10pm	Z	I hope you’ve convinced yourself… “pure” wife
27	11 Apr	12.22am	Y	I am actually! You think a fake image can break my trust in my wife? You mistaken psycho! …. i am not letting you destroy a good woman’s marriage. It will take you a lot more! Good luck
28	11 Apr	6.20am	Z	Facts facts facts…. no god will save you from truth, bury your head in the sand all you want, I’ll sleep peacefully every night, you and your wife will not, she could not get what she BEGGED for (for the best part of a year… facts will show)… and you’re too weak to face up to it hahaha!!!! No therapy can ever help you, it will always be with you every time you look at your wife… how much really needed a real man??? She literally ran away at the 5% chance she could be with another man?? You never know where she was and what she was doing…. I do :) With no options left she came home to you after rejection… hahaha… maybe you can give her all the money you offered her to stay now!? Her years salary I believe? Enjoy the leftovers.
29	11 Apr	6.21am	Z	Don’t email back, tired to pass you the information and facts which you have failed to accept Information will be made public… no further contact needed
30	11 Apr	7.57am	Y	if you are willing to do this and go this far why don’t you just send me the proof… what you shared with me so far doesn’t qualify…..
31	13 Apr	Not known	Y	Suggestion Look- i have thought about this. No need to get sensitive or emotional about it. You must have reached out to me for a reason and it cant be random or a coincidence. You have an objective you want to get to and so do I. I want to know the truth and if the truth is what you alleging then of course action will have to be taken And i don’t need this drama in my life. At the same time, you are not doing public service of course and this person you are accusing must have done something wrong to you for you to have the conviction to go this far. I suggest you share with me what videos and chat history you have in private and no need to escalate this publicly. Don’t think anyone would deserve such outcome regardless what they have done. If my suspecions are confirmed, i really don’t have to figh this or escalate it.. she will just have to go back where she was before returning. No need for further attacks and insults. I don’t know you and you don’t know me. We are possibly both victims of the same person!

95.  In the context that much of the exchange took place on 10 April 2020, it is relevant to note that was the day when X “reached out” to her boss in the hope that the boss “could intervene and talk some sense into [Z] so that he would stop the harassment and stop involving” Y.  That revelation was made only in X3 (also spoken to by Y in Y3), and was not a matter brought to the court’s attention on the ex parte application.  In X3, X also exhibited part of a message chat between herself and the boss on the evening of 10 April 2020, and it now explains what was meant in Email 22.  The exhibited chat shows that by 8.35pm X had been told by her boss that the boss had spoken to Z, who appeared to have been scared quite a bit so that the boss expressed being sure that if the sender of the emails was Z he would not do anything further.  In passing, I also note that, consistent with seeking to disguise his identity when sending emails, Z appears to have denied to the boss that he was the sender of those emails.

96.  What is noteworthy is that having learned that fact the boss believed Z would not send any further messages, it was Y who re-ignited the messages by sending Email 22.  Y’s explanation of that email in Y3 was that, having learned from X that the boss had spoken to Z, Y believed that Z would stop making threats for the sake of keeping his job, but it did not seem to have that impact as Z continued to send emails.  Against the chronology, that explanation seems at least inaccurate, and is more likely disingenuous.

D.   Whether Material Non-Disclosure

97.  It is appropriate to record at the beginning of this section that – other than not providing to Z and his legal representatives a note of what transpired at the ex parte hearing – there is no suggestion that either Ms Booth or the solicitors acting for X and Y have been knowingly involved in any matters which were not disclosed when they ought to have been.  It is obvious, but it is important to note, that the legal representatives could not have disclosed, nor advised on disclosure, of matters of which they were not themselves informed.  Also, because the documents presented at the ex parte application had sections specifically referencing full and frank disclosure, there is no reason to think that X and Y were not properly advised as to the relevant duty.

98.  Although in many cases considerations of possible material non-disclosure are dealt with last for convenience, in cases such as the present it is more appropriate to deal with those considerations at this point.  If I am satisfied that there has been material non-disclosure, and depending upon my finding as to the reason or reasons for that non-disclosure, the consequences can be considered against the wider issues.

99.  I have already indicated that, other than those matters expressly dealt with in X1 and Y1, the only point raised on the ex parte application as to further disclosure (so as to comply with the duty to be full and frank) was that Z might deny any involvement in the intimidation and harassment dealt with in evidence.  However, this point was clearly focused on the emails sent under the false name, as Ms Booth’s ex parte skeleton argued that Z is clearly identifiable as the individual who coerced and threatened X for several months, so must be the source and origin of the emails and their attachments.

100.  It fell to me as the Judge hearing the ex parte application to raise the point that Z might argue that the relationship between X and Z was entirely consensual and mutual, which would paint a very different picture of that relationship.  Whilst Ms Booth was quick to acknowledge that potential argument, and made the submission that it would not change the inappropriate behaviour of Z in and after March 2020, that does not seem to me to meet the problem now identified.  Nor was it sufficient for Z and his legal team to learn from Ms Booth’s skeleton argument for the inter partes hearing (which was in any event filed and served late) that the possible consensual nature of the relationship had been raised at the ex parte hearing so that it might be said that the court had it in mind when granting the ex parte relief.

101.  Analytically, it ought to be possible for any Judge to form a view as to whether there was material non-disclosure at the time of the original hearing before even a different Judge.  But there is something to be said for having arguments about whether or not there was material non-disclosure dealt with by the Judge who heard the original ex parte application.  If, in light of the further information available by the time of the inter partes hearing, that Judge instinctively feels that he or she ought to have been informed of the previously undisclosed matters, and would have wanted to know what has later been placed before the court, or (worse still) has been misled, that may be a clear indication that the non-disclosure was material.  As I informed Ms Booth during argument, unfortunately that is my instinctive feeling.

102.  Turning to specifics, Mr Kirpalani submitted there were various failures to comply with the obligation of full and frank disclosure, including:

(1)  the failure to disclose the reason for and use of the burner phone for messaging and booking Uber rides;

(2)  the extent of and language used in the message chatting, which is demonstrative of a loving relationship;

(3)  the alteration of the phone bills so as to remove the references to Z’s phone number;

(4)  the attempt to retrieve CCTV footage from a pub at which X had told Y she had been, when she had in fact been with Z at his home;

(5)  the deletion of messages between X and Y, including the “breakup” messages;

(6)  the informing by X to X’s and Z’s boss on 10 April 2020 of the problems between them and requesting help, as well as the boss’s actions and response;

(7)  the manipulation of the email chain between Y and Z, removing one attached screenshot and removing certain emails;

(8)  the failure to disclose the email sent by Y to Z on 13 April 2020.

103.  Mr Kirpalani submits that those failures must have been intentional because:

(1)  the use of the burner phone and the content of the various messages demonstrate a loving relationship, and are at least contrary to allegations of coercion;

(2)  disclosing the altered phone bills would have revealed the steps to which X was prepared to go to protect her relationship with Z;

(3)  the fact of the complaint to the boss is consistent with Z’s case that the relationship was an open secret amongst their colleagues;

(4)  the screenshot removed from the email chain contains X’s request for a kiss from Z, “Oh can I kiss you before”, which is contradictory to her assertion of a coercive relationship;

(5)  the emails not disclosed included (a) one that otherwise would have revealed the excluded screenshot, (b) others where Y was asking whether the intention was for “ransom”, but Z never made any such demand, and (c) Y continuing to engage with Z after Z had stopped communication; and

(6)  the 13 April 2020 email shows Y was again seeking re-engagement with Z, and was really seeking further information about X from Z (which Y might himself use against X).

104.  I think the failure to disclose the use of the burner phone, and thereby the failure to disclose the frequency and intensity of the messaging between X and Y, clearly amounted to material non-disclosure. The materiality is evident, not least by reference to the readily foreseeable answer which might be offered by Z that their relationship was in fact mutual and consensual.  The materiality is also evident from the way in which the case was originally presented, and by reference to the reply evidence which in effect now seeks to rely on the use of the burner phone and messaging as proof of the continued pressure to comply with Z’s demands.  I do not think X’s statement in X1 – that “I might be polite in my answers and overly friendly and [Z] might have perceived it as “flirtatious” or construed it as “approval” …” – sufficiently covers or explains, or even seeks to explain away, the frequency and intensity and apparent long-term nature of the messaging, now apparent from the materials exhibited by Z.  I think it would also have been incumbent on X to identify at least that there were numerous other messages between X and Z, and give some accurate flavour of them, albeit that X was no longer able to produce them in evidence because she had deleted them.

105.  The failure to have revealed the alteration of the phone bills – the materiality of which is also obvious from the fact that X now seeks to rely on them as to the extent to which she was prepared to go to avoid Z’s alleged extortion – was also a material non-disclosure.

106.  Further, the fact that at least by 10 April 2020 X’s boss had been made aware of some form of relationship and difficulty between X and Z was a material matter of which there ought to have been disclosure.  As well as being material to the knowledge or otherwise of their colleagues – the open secret point – it was at least relevant to the extent of the requirement for anonymity or gagging orders.  Also, as indicated above, the timing of that contact with the boss on 10 April 2020, during the F*** face email chain, seems to me to be material to the consideration of who was thinking and doing what in that exchange of correspondence.

107.  As to the emails, the full email chain ought to have been disclosed, including the further email sent on 13 April 2020. It was that email chain which was said to evidence the whole of the harassment and intimidation of Y, as well as the continuation of the harassment and intimidation of X.  The excluded emails are at least capable of putting a different gloss on the exchange, and would be material to the consideration of the alleged harassment and intimidation.

108.  As to how the non-disclosure came about, I acknowledge that X may be in a very difficult position, potentially caught between the two other parties.  I can see an argument that there was a real incentive for X, in an action brought together with Y, to have kept to a minimum the materials necessary to make her allegations but without disclosing even more detail as would inform Y of matters which she might have preferred to have avoided.  This may be something for further exploration at any trial.  At this stage, however, I am in any event satisfied that the non-disclosure on X’s part – at least to a significant extent – was deliberate and intentional.

109.  I had originally thought that X was in court when the ex parte application was made, and so heard me raise the point about Z potentially arguing the relationship was consensual, and how that might affect the picture.  I was wrong about that, but X would have been told about the hearing.  (Even if she was not, that would not have removed the obligation of full disclosure.)  Either then, or at the very latest before the return date hearing (in advance of which X did file another affirmation, X2), X should have made disclosure of the full picture of the time spent with X, the extent of their messaging and other contact, the use of the burner phone for messaging (and Uber bookings) and the contact with the boss on 10 April 2020.  She could have done so, even with the explanations about them now offered.

110.  As to the non-disclosure by Y, I accept that the way in which email chains are printed vary from device to device.  I also accept that the printing is not always strictly chronological where, as appears to have happened in this case, some emails were sent in response (that is, by pressing ‘reply’) to an email not the one immediately beforehand in time.  In such circumstances, it may be that some emails fall through the gaps in the printing process.  But, in this case, the nature of those emails which were not exhibited by Y to Y1 does at least give some pause, because they tend to have content which not only does not assist but may harm the case being put forward at the time.  In particular, the failure to have produced the email mentioning ransom, the last email in the chain on 11 April 2020 and the start of a new chain on 13 April 2020 – Emails 30 and 31 – seem difficult to explain by a mere printing or retrieval error.  Not least, 13 April 2020 was only three days before Y affirmed to the content of Y1, the preparation for which must have commenced even earlier.  It must have been fresh in mind.

111.  Indeed, the explanation for the 13 April 2020 email put forward in Y3 only compounds the concern.  That explanation is that the email was prepared by both X and Y, and sent to Z “to confirm if he had videos or not and if he would be willing to resolve this”.  Y went on to depose that “I was trying to prevent [Z] from “pulling the trigger” on posting anything, so to speak. There was no reply from [Z] and so my wife and I only grew more anxious”.  That explanation identifies that it would plainly have been material, and indeed one would think would be deployed in support of the case being presented at the ex parte application, as showing that even a relatively late attempt to resolve matters without things becoming public had failed, justifying greater anxiety and the need for the application and the order sought. 

112.  That that explanation was not put forward, and that the 13 April 2020 email was not disclosed, seems to me must have been a deliberate decision on the part of Y.  Looking at the content of that email, there is at least significant doubt that X was a co-author of it or even knew about it at the time, and I am not prepared to accept at this stage that the deliberate decision not to disclose that email was also made by X.  That failure also colours the other non-disclosures.

E.   Harassment

E.1    Harassment of X

113.  In her submissions, Ms Booth suggested that the harassment of X might be considered by reference to three time periods, being (1) the period from April 2019 to February 2020; (2) March 2020, and the text message exchanges over three core occasions; and (3) April 2020, and the f*** face chain of email exchanges.  Ms Booth also properly acknowledged that the inferences which might be drawn about the later events might be informed by the view taken of the context provided by the first period.

114.  There can be no doubt that the merits of X’s claim to have been caught in a lengthy, aggressive and coercive relationship with Z, following the initial act of indiscretion and intimacy in April 2019 and until February 2020, are significantly called into question by the evidence now produced by Z (see above).  However, it seems to me that the significant dispute on the facts can only be resolved by thorough exploration at a trial, in particular through examination and cross-examination of the main protagonists, X and Z, at such a trial.  To an extent, this is something of a “he said, she said” case; albeit that there is significant evidence of actual words used, why those words were used and/or what those words were actually intended to mean and/or how they were understood in context are matters which cannot be determined by me on the current affidavit/affirmation materials.

115.  It is at least possible that X and Z had fundamentally different understandings of the relationship in which they were engaged. Against the gravity of the adverse consequences which X describes might befall her were the intimacy with Z to be widely revealed, there is a proper case that what she did and said were essentially the result of the fear and shame she describes.  I recognise that this is not a short or ‘one-off’ type of matter, and X’s actions and stance towards Z took place over a significant period of time of (even on her case) something like 10 months.  Indeed, if her evidence is ultimately accepted at trial, that might emphasise the degree of repetitive conduct which is capable of leading to a finding of harassment.

116.  I also take into account that the first message exchange on 4 March 2020 might indicate a change in Z’s behaviour toward X from the nature of his previous behaviour.  Although the context is the work dispute, almost the first thing X asked was “What has happened to you? Why did you become this scary resentful person who threatens me over petty shit?”.  But a little later in the same exchange X said “I’ve been staying out of your way and did not try to contact you or talk to you”, which is capable of supporting her version of earlier events.  Z’s response that X should not try any “c***ish moves”, that he would not tolerate anyone trying him, and that she should leave him alone are also matters that are capable of supporting her version of earlier events and her description of Z’s character (including during those events).

117.  Even if, contrary to X’s case, the earlier relationship was instead as Z describes it, the 4 March 2020 message exchange follows the breakdown of that relationship, and it also can be read in the context of the subsequent messages.

118.  As to the messages on 12/13 March 2020, Z’s first message that he was going to tell his boss why he was no longer able to remain in the team and why his position was now untenable did go on to say that he did not “really plan to go into detail”.  But the only relevant detail would have been detail of their previous relationship, and that was immediately followed by the message in which Z said he was “feeling extra honest so I was also thinking of sending your husband some screenshots too…”.  X’s reaction to that was clearly one of significant anxiety; indeed, she said in terms that she was “terrified” and would not be able to sleep.  Z’s assertions that he was not going to say anything and that he “was annoyed sorry” clearly did not assuage her concern.

119.  Even if Z might be thought to have tried to take back what he said about sending screenshots to Y, what he said is at least strongly capable of identifying an intention to cause her precisely the terror and anxiety which he did.

120.  As to the message exchange on 17/18 March 2020, it may be that it was provoked by Z’s belief that he was being undermined by X at work.  Nevertheless, Z said in terms that he would “be forced to retaliate”.  It may be telling that X’s immediate response was to express being prepared to resign “if that’s what you need to stop threatening me … If that’s what it will take for this nightmare to be over”.  That response is capable of supporting X’s case as to the nature of the earlier relationship, as the “nightmare” might logically, perhaps more readily, refer to a course of events longer than just the previous few days.  Z responded that he did not “buy the victim act” (language similar to that which X alleges Z used after the first act of intimacy in April 2019); that he would not tolerate it; and that he had nothing to lose because, as he put it, “you still had to try f*** me”.

121.  When reminded by X “You know what will happen to me if you execute your threats.  It’s far beyond the value of any job”, and asked if he had yet said anything, Z said “I have not yet, but I will.  I’m tired of ppl around me lying”.

122.  I do not accept that the materials fail to identify sufficiently particularised communications capable of making out the cause of action in harassment.  Of course, whether the cause of action succeeds is a matter for trial.  But I also reject Mr Kirpalani’s submission that X cannot rely on her own paranoia as a basis for saying that Z has acted in a repetitively harassing way.  If the essence of harassment is a course of conduct, sufficiently repetitive in nature, that the person ought to know his conduct would cause emotional distress to a person, the way in which that person reacts to the conduct is relevant to that state of knowledge (on the relevant objective test).

123.  Insofar as it is necessary for a claimant to rely on past acts to demonstrate a sufficient risk or threat of similar acts being repeated in the future, it can be noted that one past threat that Z would inform Y of their relationship was indeed carried out.

124.  I also think the emails sent to Y, in accordance with that threat, are also capable of constituting continuing acts of harassment of X.  It is logical to think that the purpose of informing Y of the previous relationship between X and Z was so that Y would take it up with X, which he clearly did.  Therefore, I reject Mr Kirpalani’s submission that there is no nexus between the earlier messaging and the emails, or that the email chain was not meant to be communicated to X.  It might also be thought that hiding behind a false name, which was admittedly to seek to avoid detection by X and Z’s common employer, and to allow him to make the very denial he later made, is an indication of some intended untoward behaviour which might include harassment.

125.  Whether or not the course of conduct was sufficiently repetitive and crossed the borderline from merely unattractive to being oppressive – to be judged against the objective context once properly identified – is a matter to be investigated and determined at trial.

E.2    Harassment of Y

126.  The alleged harassing conduct is the sending of the emails in the f*** face chain.  It is correct that there were 17 emails sent by Z to Y, but (apart from the first one) they were all sent within a 24-hour period.  They were also sent in a fairly rapid to and fro exchange.

127.  Where Y appears to have been fully engaged in the messaging back-and-forth, it is difficult to see that as harassment.  There is some force in Mr Kirpalani’s submission that the emails reflect two people writing to one another with their own different agenda.  There is also force in the submission that when Z said he had already disclosed enough and would not share any more, Y tried to provoke a further response.  As already indicated, it is also correct that after being spoken to by his boss Z had not sent any further message before Y sent the re-igniting message which reads as a deliberate goading.

128.  Ms Booth submitted that this was not just an email spat, or the trading of barbs, or a tango of words (some of the phrases used by Z and Mr Kirpalani).  Rather, Z had initiated the whole series of emails by sending emails to both Y’s personal and work email addresses, and then threatened public posting of ‘tagged’ pictures and video footage.  She submitted the content was vitriolic and intended to inflict distress and harm and to cause alarm.  Z’s own case was that he made effort to “double down” and to make X and Y “take him seriously”.  She submitted that the degree of alarm and anxiety caused is evident from the commencement of these proceedings.

129.  But, at this stage and on current materials, in my view – though there may just be a serious issue to be tried – the claim that Y has been harassed is not very strong at all.  If part of the assessment of the existence or not of harassment requires consideration of the reaction of the person allegedly harassed, the emails from Y to Z are not indicative of fear or emotional distress.  Rather, they are themselves provocative, seeking and re-igniting engagement, pursuing the very information which Z said he had and intended to publish.

130.  Unattractive as Z’s emails appear to have been, so were Y’s responses, and there does not seem to me to be a very strong case at this stage that Z’s emails constituted harassment vis-à-vis Y.

F.   Intimidation

F.1   Intimidation of X

131.  It seems to me that the thrust of the case on intimidation for X is that she was coerced into acting in a particular manner which otherwise she would not have done.  Whilst that originally might have been so as to maintain a close and occasionally intimate relationship with Z, that cannot continue to be the basis of seeking an injunction as to the future.

132.  Rather, as it was put by Ms Booth in submissions, the relevant “or else” element was that X should not take advantage of the situation at work, should not seek to usurp Z’s position, and should not compete with him.  This element is to be found explained in X3.

133.  Contact between X and Z, including largely at work, ended after their relationship ended in February 2020 (whatever the nature of it was).  Prior to that, on X’s case, she had been meek and appeasing.  But she says that once the relationship had ended, and she felt no need to act in the same way, Z mistook her actions and perceived he was being badly treated.  On his own evidence he became “consumed” by thoughts of X, and his response was the various messaging and emails sent in March and April 2020.

134.  Mr Kirpalani submitted that there could have been no intimidation as there were no unlawful threats and no coercive demand.  The submission proceeded on the basis that Z merely informed X of what he was going to do, and did not suggest that he might not do it were X to act in a particular way.  As Mr Kirpalani put it, there was nothing that X could do to change Z’s mind.

135.  But it seems to me that it is at least seriously arguable that the unlawful threat is the threat to damage X’s reputation with the intent of alarming her or causing her some damage.  It is also properly arguable that the threats would be understood between the parties in a way which arises from the context of their relationship in 2019 until early 2020. The significant ramifications to X and her wider family of publication of the sexual encounters would have been understood.  The concept of “retaliation” readily encompasses an “or else” threat.  Further, as X says, the blocking of the phone in March 2020, immediately after Z sent a reasonably aggressive message (whatever its alleged provocation) is consistent with what X says previously occurred with blocking and unblocking by Z of messaging between them.

136.  The f*** face emails are also capable of amounting to intimidation of X, for example to fall in line at work.  Z had made it clear that he was willing to execute his threats, as he had carried out his threat to inform Y of their sexual encounters.  The next step was to threaten to take it public.  The “or else” element continued to hang over X’s head.

137.  There is sufficient merit in X’s claim in intimidation as might support the grant of interim injunction relief, depending on the other balancing factors.

F.2     Intimidation of Y

138.  But, as with the claim in harassment, I do not think there is a very strong case for Y on his claim in intimidation.  As Mr Kirpalani submitted, this was a trading of insults between Y and Z.  It was not a one-sided communication, with some “or else” threat.

139.  As regards Y, it is much more difficult to discern any unlawful threat made against him.  There is no clear statement in Y’s evidence as to any threat coupled with the demand to act or refrain from acting in a particular manner.  It is difficult to follow what the “or else” would have been, in context.  The excluded evidence relating to emails asking about “ransom”, to which Z did not respond, also suggests that Y understood that there was no demand.  As well as some earlier emails from Y, the 13 April 2020 email suggests Y was making his own demand, so as to achieve his own “objective”.

140.  I do not think there is even a serious issue to be tried on Y’s claim in intimidation.

G.   Whether Wrong Cause of Action

141.  Mr Kirpalani submitted that remedies for harassment and intimidation are of a personal nature, preventing a defendant from communicating directly or indirectly with a claimant.  Therefore, any restraining order granted must match the cause of action and can only be granted if there have been past acts, the restraint being of future similar acts.

142.  In this case, Mr Kirpalani said, a restraining order to prevent the publication of personal information is the remedy for the cause of action in misuse of private information.  Indeed, Mr Kirpalani said, the way in which X and Y justified urgency and also sought an anonymity order also demonstrates the aim of the proceedings is to prevent Z from publicising information relevant to his affair with X.

143.  In England & Wales, the tort of misuse of private information, which had traditionally been ‘shoehorned’ into the tort of breach of confidence, has been given judicial recognition as a stand-alone cause of action since Campbell v MGN [2004] 2 AC 457 at 464-465.  In doing so, the Court recognised that a breach of confidence is traditionally founded on the confidential relationship between the transferor and the transferee of the confidential information.  In contrast, the tort of misuse of private information, being geared more specifically towards the protection of private life, provides more targeted protection against publication of information which is personal or private in nature.

144.  So, Mr Kirpalani said, to echo a phrase from the Khan case, this is a misuse of private information case dressed up as a harassment and intimidation case.

145.  Misuse of private information has apparently not yet received formal judicial recognition as a cause of action in Hong Kong.  It was discussed by the Court in Sim Kon Fah v JBPB & Co (A Firm) [2011] 4 HKLRD 45 at §§36-42 (a case mainly on breach of confidence).  In X v Y [2014] 5 HKLRD 823, mentioned above, the cause of action was also relied on by the plaintiff in circumstances concerning disclosure of photographs and information pertaining to a secret intimate relationship of a well-known person, but the matter was resolved without the Court needing to make any determination on that cause of action.

146.  As an aside, as the point does not really arise at present, and assuming that this has not been dealt with already (as it is possible that any judgment in previous cases has been “not for publication”), it is in my view high time that the Hong Kong Court recognised the tort of misuse of private information.  If indeed it has not happened, it is likely that it has not happened simply because the right case has not come before the Court and pursued to the full conclusion.

147.  Further, whilst Mr Kirpalani accepted that an order might be made preserving the evidence said to constitute harassment or intimidation pending further investigations and a trial, he said those causes of action could not lead to the remedy of delivery up.

148.  But, because X and Y have elected to run their case in the manner they have, Mr Kirpalani submitted they must live with that choice and suffer any costs consequences that flow from it.  He also submitted that the various authorities relied on by the parties demonstrate that relief for restriction of publication of private information must be made in conjunction with a claim for harassment to prevent dissemination of private information.

149.  In response, Ms Booth submitted that the terms of the relief sought are appropriate for the case brought by X and Y in harassment and intimidation.  She also submitted the terms are commonly used in such cases, as are orders for delivery up to ensure that an injunction is effective: see Oriental Press Group v Immediahk.net Ltd [2012] 2 HKLRD 1004 at §81.  But I tend to agree with Mr Kirpalani that that case might not provide much assistance in current circumstances.  That was a defamation case, where the relief being sought was a Norwich Pharmacal order for ancillary disclosure, which order was granted to provide the claimant with the full information necessary to commence a civil action.  Mr Kirpalani also informed me that he had been unable to find a single case where harassment or intimidation has been alleged and an order for delivery up has been made on that basis.

150.  In my view, this may not be an entirely straightforward area.  I accept that, in most cases of harassment, it will not be necessary nor appropriate for there to be an additional restriction on the publication of private information absent a specific plea on the misuse of private information.  But there may be cases, such as the present, where it is at least strongly arguable that the relevant point of restricting publication of private information, and/or requiring delivery up of such information held, is either (a) to avoid defeating the very purpose of the main relief which might be granted, or (b) to ensure proper compliance with and enforcement of that relief, or both.  Also, the allegations identify the harassment or intimidation as including the threat to make private information public where real damage might result.

151.  For present purposes, I am not prepared to proceed on the basis that X and Y could not potentially justify these forms of relief at trial.  But I fully accept that any interim relief as might be granted must be carefully drafted so as not to be too broad.

H.   Whether Ex Parte Application Appropriate

152.  It is settled law that natural justice requires all parties to be heard save in the most exceptional circumstances.  Such circumstances might be extreme urgency or secrecy.

153.  Therefore, ex parte orders are only made where the situation is of genuine urgency, where there is no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may be frustrated if the defendant is informed of what is proposed.

154.  Where an order is improperly obtained ex parte, it can be set aside on that ground alone.

155.  Mr Kirpalani submitted that there was neither extreme urgency or secrecy in this case.  He said that, at the time of the application, X and Y knew that the threat of publication had not been carried out, even by posting on the dark web.  Because the deadline for publication was apparently set at 15 April 2020, and that date had already passed by the time of the ex parte application on 16 April 2020, so there was no urgency.  Even if the threat was real, X could have issued a writ under what he said is the correct cause of action of misuse of private information, and obtained a quia timet injunction.

156.  I disagree.  That the deadline had only just passed did not remove the urgency.  Albeit that it would be necessary to take into account that the apparent threat had not been carried out within the deadline apparently set, on one view the timing became even more urgent.

157.  In light of the various statements made by Z in the emails, to be viewed in context against what X and Y were submitting was the proper way to view the prior relationship and the messaging in March 2020, a ‘cease-and-desist’ letter might well have been thought possible to provoke an act which would make the application redundant.  At the time of the application, there seemed to be a real risk that if Z knew that he would soon to be subject of the order preventing his publishing the threatened materials, Z might automatically bring forward whatever plans he had.  Given the nature of the suggested materials, any publication could have been effected in a very short time.  I do not see why X, and maybe Y, should have assumed Z’s threats were “empty”.

158.  In this case, I am satisfied that the ex parte application was justified both on the grounds of urgency and the need for secrecy.  I would not, therefore, set aside the ex parte order merely on the basis that the application was made ex parte.

I.   Interim Relief or not

159.  I accept that the damage from acts of harassment and/or intimidation is difficult to quantify, and that certain irreparable damages can never be adequately compensated.

160.  It might also be accepted that there is perhaps some practice that would be suffered by Z if he is the subject of the injunction, at least to the extent that he will be prevented from speaking about certain aspects of his private life, even to those parties involved in those aspects.  But there seems to be little prejudice in being required to cease contact of the sort which might ultimately be held to form conduct of harassment and/or intimidation.

161.  As to the impact of the failure on the part of X and Y to give full and frank disclosure, I regard the non-disclosure as serious.  As I have indicated, whilst some aspects of it may have been innocent, it is difficult to avoid the conclusion that other aspects were deliberate.  Certainly, the overall picture painted at the ex parte stage seems very different to the overall picture now seen in the light of the subsequent disclosures.

162.  I acknowledge the fact that, between the first return date and the full inter partes argument, Z offered certain undertakings, which go to his credit.  But, Z was not prepared to continue any form of undertaking going forward.

163.  As regards Y, I do not think the merits of his claim are sufficiently strong as would balance matters in favour of the grant of any injunction in his favour.  But, as a matter of practicality, that may make little difference as any injunction against Z to restrain harassment or intimidation will include restraining contact from Z to Y (for the reasons I have already explained).

164.  As regards X, in the end, and on the discretionary balancing exercise focusing on what appears to be the greater risk of injustice on the grant or the refusal of injunctive relief, I am persuaded that there is a greater risk of injustice were interim relief to be refused.

165.  So grave would appear to be the potential consequences to X, against which she seeks to guard by bringing these proceedings and by maintaining the secrecy, that it is one of the factors that tips the balance in favour of the grant of interim relief.  It does so, in my view, notwithstanding the material non-disclosure, the consequences of which can in the present case be adequately dealt with in effect by the appropriate costs order.

166.  In these circumstances, whilst I consider it necessary and appropriate to set aside the ex parte order, I will re-grant some form of order inter partes.  As I say, the disapproval of the court can also be expressed by visiting the costs consequences on X and Y, and an appropriate order can be framed to focus on the period between now and the trial (if there has to be one).

167.  I also take into account in the exercise of my discretion in relation to these various protective orders that it is my intention that this matter be brought to a “speedy” trial (if there has to be one).  Therefore, the orders may not be in force for as long as in some other cases, and their precise terms may be the subject of review even in the interim period before trial (see below).

J.   Private Hearing, Anonymity and Gagging Orders

168.  It can be said that the threat of revealing information of the intimate and sexual nature engages the parties’ right to private life.  Whilst Z may desire to be publicly vindicated, the time for any necessary publication of vindication is yet to arrive.  At this relatively early stage in the proceedings, there has not been any publicity of the allegations against Z.  Furthermore, if it comes, vindication will come following the trial.

169.  In the meantime, it seems to me that all parties would benefit from private hearing and anonymity.  That would also provide some ‘safe space’ within which the parties might seek to resolve matters without going to a trial (see the Postscript below).

170.  I also accept that, in the particular circumstances of this case, the grant of the injunction would in effect be rendered nugatory if the various steps intended to be prevented, and the information inherent in them, were then to be made widely available to the public.  The very ill that X and Y have sought to prevent would be achieved through the court’s own process.  Therefore, abiding by the general rule of open justice would inherently prejudice and frustrate the administration of justice.

171.  X has spoken to this in X2, in which she reiterates that if the current proceedings are made public, it would not take long for people in her home country to know about her marital life and “shameful history” with Z.  This would bring immense shame and dishonour to her family, and she would be ostracised from her family and the Muslim community at large.  Further, adultery remains a criminal offence in that country, with imprisonment terms of between one and two years.  X also says that so-called “honour crimes” are also treated more leniently in the context of adultery.  Y confirms this in Y2, and expresses his concern at his own position, as well as that of X.

172.  It is correct that in many cases where anonymity or a gagging is ordered, there is some element of blackmailing (which is an element yet to be proved in this case, though I have found there to be a reasonable case on intimidation of X).  But, as a matter of principle, I do not think that such orders are restricted only to cases where there is a blackmail element.  Also, until the matter is resolved at a trial, I cannot proceed simply on the basis that Z is bound to succeed in demonstrating that it was an open secret that he and X were involved in an adulterous and consensual affair. Further, an open secret may be one thing but full publication is very different.

173.  Therefore, until further order, it seems to me that this case should continue to be listed anonymously, and that the court file should not be open to public inspection.  All further hearings should, until further order, be listed to be heard in Chambers not open to the public. By the time of the pre-trial review hearing, if not previously done in the light of other interlocutory developments, I would expect to revisit how the trial would be heard.

174.  As to the gagging order, I also think that should be continued until further order.  But I am conscious that such an order may prejudice the parties, and in particular Z, in their preparation for trial.  For example, Z has already indicated that he might wish to approach certain other persons for the purposes of obtaining witness statements from them for potential deployment in these proceedings and at the trial.  I suppose the same might be true also for X and Y, who must realistically face the same practical problem.  But I agree with Mr Kirpalani that the gagging order may be thought toothless unless all parties are bound by it, so they will be.

175.  In those circumstances, I give specific liberty to apply to lift or alter the gagging order in the light of properly prepared explanations as to why it should be lifted or altered, and in what way.  For example, it may be necessary to consider the use of “confidentiality clubs” of the sort more ordinarily used in sensitive commercial litigation.

K.   Terms of the Order

176.  In the original ex parte order, the form of the restraint against harassment and/or intimidation largely tracked the final relief which is being sought in the writ.  At the application I had raised concerns about the use of other language (“nuisance, threatening, insulting, disturbing, molesting” etc) but was persuaded that such words might be appropriate as being encompassed within harassment or intimidation. On reflection, I think those words are unhelpful.  The focus should simply be on the restraint of harassment and intimidation, and Z is entitled to know what he can and cannot do in that context.

177.  I also think that any reference to other causes of action, such as defamation, should not be included.  The application for the interim relief has been put forward expressly on the basis of only the two causes of action in harassment and intimidation.

178.  At the return date hearing, albeit by way of Z’s undertaking rather than an order, an appropriate carve-out was made in relation to genuine ordinary work communications between X and Z (which I agree clearly should not be prevented).

179.  As I have indicated, the private hearing, anonymity and gagging orders shall remain in place until further order, but with specific liberty to apply.  For example, whilst each hearing will for the time being be listed with the parties being referred to by letters and to be heard in Chambers not open to the public, it would be open to the parties during the hearing to seek to lift restrictions.  Similarly, some form of revisiting of the gagging order may well be required for the purposes of further interlocutory steps and preparation for a trial.

180.  As to the trial, I order a speedy trial fixed for 10am on 5 October 2020, with 5 days reserved (up to and including 9 October 2020).

181.  A Penal Notice shall attach to the order, which shall also be made on the basis of the cross-undertaking from X and Y (and I do mean both of them) that if the court later finds that the order has caused loss to Z or any other party and decides that Z or that other party should be compensated for that loss, X and Y will comply with any order that the court may make.

182.  Therefore, and on that basis, the terms of my order are, until trial or further order, as follows:

(1)  The defendant, whether by himself or in conjunction with any other party and/or through his servants, agents or otherwise howsoever, be restrained from harassing or intimidating the 1^st plaintiff, including in particular the following acts:

(a)  any communication with the 1^st and/or 2^nd plaintiff(s) by telephone, email, instant messages, text messages, fax, social network or other electronic means, or other writing;

(b)  distributing, sending, circulating, emailing, publishing, disseminating or otherwise howsoever transmitting to third parties (including and without limitation to work colleagues) or in any place any files, documents, images, records or information in any other form containing the personal data of the 1^st and/or 2^nd plaintiff(s).

Subject to the proviso that the restraint does not extend to, and the prohibited acts do not include, genuine ordinary work communications with the 1^st plaintiff.

(2)  The defendant shall preserve and retain all photos, recordings, documentation, and information in his possession (including all copies thereof), which contain the personal data of the 1^st and/or 2^nd plaintiff(s), save for genuine ordinary work communications.

(3)  The court file in these proceedings shall be sealed, and any public reference to these proceedings shall identify the parties not by name or address, but only by the letters X, Y and Z, respectively.

(4)  All court hearing shall be listed in the first instance as to be conducted in Chambers not open to the public.

(5)  Any judgment or ruling given in the case will be marked “not for publication”, at least until the parties have been given an opportunity to be heard on whether the judgment or ruling can be published and, if so, whether with any redactions.

(6)  None of the parties may disclose any of the documents served upon them as a result of these proceedings, nor this order, other than to his legal representatives (who in turn will not be entitled further to disclose the documents), and none of the parties nor their legal representatives may reveal to any other person the identity of the parties or the nature of the subject matter of the proceedings or any details that would allow direct or indirect identification of the parties.

(7)   General liberty to apply.

L.   Costs

183.  Having found that the non-disclosure was material and, at least to a significant extent, intentional, I exercise my discretion in awarding at least part of the costs to Z.  That part of the costs will be payable by X and Y on an indemnity basis.

184.  Nevertheless, though I have set aside the ex parte order, I have also exercised my discretion to re-grant some interim interlocutory relief, with various ancillary orders.  But I have done so only as regards X’s claims.  The restriction about contacting Y is only on X’s cause of action, not Y’s.  For that reason, there seems to me to be a necessary apportionment, which can be performed on a broad brush basis, relating to the incidence of costs.

185.  Upon the grant of interlocutory injunctive relief, various costs orders are open to the court in the exercise of its discretion.  Sometimes costs are ordered to be in the cause, sometimes the applicant’s costs in the cause, and other costs options arise.  In this case, it seems to me to be appropriate to reserve the costs relating to that part which I do not ordered to be paid to Z on the indemnity basis.  That preserves the parties’ arguments, in circumstances where the assessment as to the incidence and liability for costs will best be seen on a future occasion.  I also have in mind, and take into account, that some of the costs expenditure incurred by Z would not be wasted if the matter does progress towards a trial.

186.  The question arises as to any costs added, or even potentially thrown away, as the consequence of adjournment of the argument from 14 May 2020 to 18 May 2020.  Rather than being dealt with separately, they can be dealt with within the broader approach to the apportionment of costs that I have already canvassed.

187.  In the circumstances, I order X and Y to pay 65% of Z’s costs of the inter partes application on an indemnity basis.  Those costs are payable forthwith, to be summarily assessed by me if not agreed between the parties.  Any summary assessment will be performed on paper.  The remaining costs will be reserved.

M.   Other Directions

188.  Obviously, if the matter is to progress, the next procedural step should be for X and Y fully to plead their case and claim in a statement of claim.  In light of my direction for a speedy trial, I would direct that the statement of claim must be filed and served by 4pm on 8 June 2020.

189.  Before that date, I would expect the parties to be able to agree on a timetable for all further interlocutory steps to be completed sufficiently in advance of the first day of trial on 5 October 2020.  Any agreed timetable should be provided to me for my consideration and possible directions.  If the parties are unable to agree a timetable, they should provide their proposed timetables to me by 8 June 2020.

190.  Once the full issues have been identified more clearly through the pleadings, I anticipate that there will be a necessity for some hearing as to how to deal with modifying the approach to confidentiality of the proceedings.  Therefore, I provisionally fix a hearing at 10am on 13 July 2020 (with 1 hour reserved) to deal with that, and any other issues as may by then have arisen.

N.   Postscript

191.  However, it is to be sincerely hope that the disputes which have arisen between these parties can be resolved without the need to progress these proceedings to a trial.  An early resolution would also avoid the incurrence of the further amounts in costs which so frequently become a bar to compromise.

192.  On the assumption that Z is being truthful when he says there never was any video which he would have been able to post publicly, at least one of the major concerns of the conduct said to amount to harassment and intimidation might be thought to have been resolved.  Z has now also identified what other photos and documents he retains.

193.  Also, as will be apparent from this Judgment, it is my view that no party comes out of this ‘smelling of roses’.  Of course, I accept – and to use a phrase in common parlance when looking at human relationships – “it’s complicated”.  But it is difficult to see how any of these three parties’ long-term position is going to be significantly improved through continued combative dealings leading to a trial.  Tempers and emotions have been high, and now may be the time for some cooling off.

194.  Whatever the true nature of the relationship between X and Z, it seems to be well and truly over.  Yet they remain colleagues, and realistically they must try to work out a way of dealing with each other on a day-to-day basis within the work environment for as long as they remain in common employment.  Neither Y nor Z previously had any dealings, and some may think it difficult to imagine why they might need to be in contact ever again (absent these proceedings).  As to X and Y, these unfortunate events may have brought them closer together, and it is to be hoped that they can move forward on a firmer basis.

195.  Hence, particularly with the benefit of the sensible and experienced solicitors and Counsel which the parties have the benefit of having instructed, I hope they will consider some alternate and constructive means of resolving matters.  Mediation is an obvious possibility.