Baccanello voluntarily discontinues her claim for sexual harassment
Key Points
- Hong Kong District Court has set aside the Anonymity Order granted to Claimant, Jennifer Baccanello, on 4 October 2023
- Baccanello ordered to pay Stefano Mariani's costs in his application for the Anonymity Order to be lifted
- The Judge's decision raises important questions around the proper use of Anonymity Orders, where there is scope for their abuse by claimants seeking to make allegations without themselves facing scrutiny
- Mariani has commenced defamation proceedings against Baccanello and her husband in connection with untrue defamatory emails sent by them in 2023.
HONG KONG, June 4, 2024 /PRNewswire/ -- On 30 April 2024 the Hong Kong District Court handed down its Decision* ordering that the Anonymity Order granted to the Claimant, Jennifer Baccanello, on 4 October 2023 in her claim for sexual harassment against Stefano Mariani in Action DCEO 11/2023 be set aside. The Judge also ordered Ms Baccanello, 33, to pay Mr Mariani's costs of his application to set aside the Anonymity Order
Ms Baccanello, who is a registered foreign lawyer at Hong Kong law firm, Deacons, where Mr Mariani was formerly a partner, has since wholly discontinued her action against Mr Mariani and will therefore also have to pay all his legal costs for the underlying action.
Ms Baccanello's Notice of Claim, in which her name was anonymised, and which was circulated widely online and attracted extensive comment, alleged that Mr Mariani sexually harassed her contrary to sections 2(5)(a) - (5)(b) and 23 of the Sex Discrimination Ordinance when they were both employed at Deacons, despite Deacons having conducted an internal investigation and finding that "there were insufficient evidence or grounds to support [Ms Baccanello's] claim for sexual harassment" against Mr Mariani, and Ms Baccanello confirming in writing "her agreement and understanding" to Deacons' conclusion.
In his Decision, the Judge found that Ms Baccanello had completely failed to discharge her duty to make full, fair and accurate disclosure of all material information to the Court when making her ex parte (made without notifying the other party) application for an Anonymity Order.
Having read the WhatsApp messages exchanged between Mr Mariani and Ms Baccanello during the course of their relationship, and whilst noting that he should not make any factual findings at this stage, the Judge commented at paragraph 51 of his Decision:
"However, by my plain reading on the face of these messages within the whole context, I agree with Mr. Bartlett [Mr Mariani's barrister]that they appear to show that this was simply a romantic affair, entered into freely and consensually, and it ended by mutual agreement because of various factors (including perhaps a mismatch of expected level of commitments). Importantly, at least on the face of these records, I find no obvious evidence of any accusation of improper conduct of any description by either party."
He further observed at paragraph 73 that there was "some force" in the argument advanced by Mr Mariani's barrister that Ms Baccanello's presentation of the evidence "went beyond a simple failure of material non-disclosure, but was a deliberate attempt to mislead the court".
The Decision addresses:
- the legal principles to be applied in the granting of Anonymity Orders, taking into account the general requirement for open justice (to promote the honesty of litigants) and the matters to be considered for any derogation from this guiding principle by applying a "weighing exercise" to decide whether one litigant should be allowed to hide behind a shield of anonymity;
- the justification for making / retaining Orders made on an ex parte basis, including urgency and the quality / timing of supporting evidence (including medical evidence) as well as the duties owed to the Court when making such ex parte applications, including the high duty of making "full, fair and accurate disclosure" and the duty of not misleading the Court; and
- briefly, the effectiveness of traditional Anonymity Orders in the context of all-pervasive social media.
On 16 May 2024, Mr Mariani commenced defamation proceedings** in the Hong Kong High Court against Ms Baccanello and her husband in relation to defamatory e-mails which they had sent to various recipients between January and August 2023.
*Decision of 30 April 2024 in DCEO 11/2023:
**HCA 896/2024
PRESS RELEASE ISSUED BY BOWERS, SOLICITORS FOR STEFANO MARIANI