Introduction

Can sexual harassment victims stay anonymous in a lawsuit? The short answer is generally “No”, because of “the principle of open justice”, which is most frequently expressed in the form of an aphorism attributed to Lord Chief Justice Hewart in his judgment in R v Sussex Justices; Ex parte Macarthy [1924] 1 KB 256 at 259:

“It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Only in exceptional circumstances that the court may derogate from this principle and make an anonymity order under its inherent jurisdiction.

X v Mariani, Stefano [2024] HKDC 636 is a high-profile sexual harassment case between two former colleagues at a Hong Kong law firm. In this rare authority on anonymity in sexual harassment claims, the Court ruled against the claimant and decided that it was a clear-cut case that she should not be allowed to hide behind the shield of anonymity.

Background

X, a junior female lawyer, complained that the respondent, a former male partner at the law firm, engaged in various acts of sexual harassment and gaslighting (such as by portraying himself as a mentor and an important figure at the law firm so as to exercise control over her).

At first, the Court granted an anonymity order for the benefit of the claimant alone, allowing her to remain anonymous in the proceedings. The respondent then applied to set aside the anonymity order, arguing that the claimant had failed to disclose material facts, deliberately misled the Court, and abused the process of the Court.

Legal principles for granting an anonymity order

The starting point is that judicial proceedings should be held in public and parties should be named in judgment (also known as “the principle of open justice”), except in exceptional circumstances. The rationale is to maintain public confidence in the administration of justice, reduce the likelihood of having untrue and uninformed comment on the legal proceedings, and deter improper conduct on the part of the court.

Anonymity order is a derogation from the principle of open justice and can only be justified in exceptional circumstances. The burden is on the claimant to adduce clear and cogent evidence to show that such an order is no more than strictly necessary to secure the proper administration of justice. An anonymity order generally will not be granted simply for the purpose of protecting privacy or avoiding embarrassment.

The Court summarised the test as a “weighing exercise” as follows:

“a.   One most important, if not decisive, consideration is that the nature or circumstances of the particular case are such that the application of the general principle in its entirety would frustrate or render impracticable the administration of justice, but any derogations from general principle must be strictly necessary as measures to secure proper administration of justice;

b.    Besides this, considerations of relevant interests, rights and freedoms (e.g. Articles 10 and 16 of the Hong Kong Bill of Rights) must also be taken into account in a balancing act;

c.     it can only be justified in exceptional circumstances;

d.    facts and issues are specific to each application;

e.    establishing such derogation from general principle requires clear and cogent evidence and the burden lies with the applicant;

f.      Any derogation granted, where justified, should be no more than strictly necessary to achieve the purpose; and

g.    After applying this test, the court is under the duty to either grant or refuse it as a matter of obligation and not discretion.”

In the past, the court had granted anonymity orders in the following situations:

·           where it is shown risk to life or safety of a party or others;

·           where the interests of a child or vulnerable person may be harmed if their names and personal information are known; and

·           in blackmail cases where revealing a party’s name would prejudice the proper administration of justice.

The Court’s decision

Lack of justification for an ex-parte application for the anonymity order

The claimant applied for an anonymity order on an ex-parte basis (i.e. in the absence of and without representation of or notice to the other party before the hearing of the application) on the ground of urgency. The claimant claimed her application was urgent due to the impending expiration of the 2-year limitation period for her sexual harassment claims at the material time.

However, the claimant had mistakenly identified the date of the first act of sexual harassment. The Court found that even if there was perceived urgency by the claimant, it still would not justify an ex-parte application for an anonymity order. It was not a case of extreme and genuine urgency or secrecy where there was no time to notify the respondent and/or to allow the Court to hear arguments from the respondent.

Serious material non-disclosure

In determining an application for an anonymity order, the court needs to engage in a weighing exercise to consider many matters, including whether the claimant has discharged her duty to place before the court all matters which are relevant to the weighing exercise, including matters which may be adverse to the claimant and evidence which shows how and why the respondent might oppose the application.

As it was an ex-parte application, the claimant had the “high duty” to make full, fair and accurate disclosure of all matters relevant. 

The Court found that the claimant failed to draw the Court’s attention to various important matters, including:

·           WhatsApp messages which suggested that the relationship between the parties was simply a romantic affair entered into consensually and came to an end by mutual agreement: This shows a prima facie defence against the claimant’s allegations of sexual harassment and should be brought to the Court’s attention. It was insufficient for the claimant to simply exhibit the WhatsApp messages. The claimant has the duty to identify the key points for and against the application and not simply rely on mere exhibition of documents in affidavits. 

·           A meeting note from the law firm signed by the claimant where she acknowledged and agreed that there was insufficient evidence or grounds to support her claim of sexual harassment.

·           The background of a threatened defamation action by the respondent, which indicated that the respondent would surely object to the application for an anonymity order for the benefit of the claimant alone.

The Court found these omissions to be very serious material non-disclosure. Objectively, these were evidence adverse to the application for an anonymity order which concerned the interests of the respondent. The claimant clearly failed to discharge her duty to place before the Court all relevant matters.

Medical reports

The Court refused to place any weight on the medical reports adduced by the claimant (including one which diagnosed the claimant with post-traumatic stress disorder). The Court found that the reports were based on subjective accounts from the claimant and lacked objective evidence. For example, most of the contents in a medical report was de facto a recital of the subjective history from the claimant. The relevant doctor also clearly overstepped his role in referring to the claimant as “the female victim” or “the victim” throughout his report. Generally, whenever a medical opinion is substantially based upon or affected by subjective medical history, the court should consider such medical opinion after conducting a fact-finding exercise at trial in relation to the truthfulness of the medical history.

Privacy, reputational harm and embarrassment

The Court considered that the grounds regarding privacy of the claimant’s family and child, inconvenience, social stigma attached to HPV infection, embarrassment and reputational damage were insufficient arguments alone by themselves to support the grant of an anonymity order. 

Conclusion

In view of the lack of justification of the ex-parte application and the very serious material non-disclosure by the claimant, the Court set aside the anonymity order.  The Court expressed its strong disapproval of the claimant’s conduct by making a severe costs order against her.

Takeaway

X v Mariani, Stefano underscores the high threshold for obtaining an anonymity order in Hong Kong courts. It reinforces that derogations from the principle of open justice must be strictly necessary and justified by exceptional circumstances with cogent evidence. It also highlights the duty to alert the court as to all relevant matters, including potentially adverse and prejudicial evidence. The decision serves as an important reminder that litigants must act with honesty and transparency in legal proceedings, in particular, an applicant’s “high duty to make full, fair and accurate disclosure” in ex-parte application.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2025