Is a solicitor under a duty to warn their client of risks falling outside their retainer?
This episode focuses on private information being placed in the public domain. The so-called ‘Indiana Ray’ website for ‘discreet’ extramarital affairs has been hacked with over 100,000 names being leaked online.
The foreign secretary’s husband, Mr Graham, is among the first batch of names released. His indiscretions threaten to ruin his wife’s important and high profile trip with the Chinese president and potentially her political career. Embarrassing personal details of Mr Grahams’ sexual preferences also risk being exposed.
While Mrs Graham is initially certain that she wants a divorce, the waters soon become muddied. We are made aware that Hannah’s mother obtained a privacy injunction for Mrs Graham five years ago against a national newspaper when photos of Mr Graham and another woman were taken at a hotel with ‘all bits of kit’. Injunctions are one way of preventing damaging information from entering the public domain but they need to be considered carefully to determine whether they are an appropriate remedy. Individuals have to urgently apply for interim privacy injunctions, which are temporary injunctions granted pending a further hearing. The privacy rights of those seeking the injunction will be considered alongside any public interest in the story and the extent to which it is already in the public domain. Much to the consternation of the English media, privacy injunctions have been granted gagging them even where information has been widely published by third parties on the Internet and in other jurisdictions. While the practical effectiveness of a privacy injunction has been questioned in these circumstances, the fact of an affair published on an Internet site is significantly less damaging to reputation than the publication of intimate and salacious details in a front page tabloid story that can be repeated without restraint.
Hannah experiences turmoil about how to best advise her client once she is made aware that Mrs Graham swore a witness statement in which she knowingly lied saying that her husband had spent the weekend with her, in order protect herself and her family from public scrutiny. This is particularly alarming given a privacy injunction is an “equitable remedy” and Mrs Graham can only obtain this if she comes to Court with “clean hands” and does not act improperly. If this came to light, Mrs Graham could be found to be in contempt of court for interfering with the administration of justice. It is a serious offence which carries a maximum punishment of up to 2 years in prison or an unlimited fine. Hannah’s mother, the Managing Partner of Defoes, previously advised Mrs Graham to make the false statement, which could lead to professional disciplinary action. She is reminded by her daughter that as a solicitor her first duty is to the court, not the client. This is something that clients are sometimes unaware of.
Hannah tells Mrs Graham that divorce will be in an open court with details of her private life being made public for the press to publicise and scrutinise. While the majority of family cases are heard in private (the public cannot attend), in April 2009 accredited media representatives were given the right to attend hearings that take place in private as well as those that take place in open court. Where hearings are in open court the general rule is that the media can publish a full report unless prohibited from doing so.
In 2014 the President of the Family Division issued guidance to ensure there is greater transparency of the work in the Family Courts however it also highlighted that each judge retains the discretion to determine whether a case before them should have any publicity. A judge can also put in place reporting restrictions and ensure the judgement is anonymised to protect a person’s identity. Generally, cases involving the future of children will be heard in private and no reporting will be permitted. Permission for such proceedings to be publicised are rare and confined to circumstances where there are sufficient public interest arguments at play.
Ultimately, Mrs Graham decides to stay in the marriage. An exclusive interview is arranged for Mrs Graham with a journalist who has agreed in advance what the questions will be. This helps Mrs Graham present a more favourable side of the story and protect her career and family. Generally, the press do not co-operate or even provide drafts of what they are about to publish even after an interview and so it is important to take advice before considering this approach.
If you would like to speak to Emily Greig, Mark Fallmann, or any other member of our Family and Dispute Resolution team about any of the issues raised in this blog or through storylines featured in The Split, please do not hesitate to get in touch.
You may also be interested in reading other blogs with our reflections on The Split:
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