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:
https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=159776&QS=%2B%7C%28DCEO11%2F2023%29&TP=JU
**HCA 896/2024
PRESS RELEASE ISSUED BY BOWERS, SOLICITORS FOR STEFANO
MARIANI
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