Sarnoff v Weinstein Company: Cloisters successfully represents Claimant

Chris Milsom led by Jonathan Cohen QC has acted for the successful Claimant YZ in the EAT appeal of Sarnoff v Weinstein Company and ors. The appeal concerned the extent of the ET’s power to make a disclosure order against a person outside Great Britain.

YZ alleges that she was sexually assaulted and harassed by Harvey Weinstein (the third respondent) and that Mr Sarnoff amongst other named Respondents “knowingly helped” this course of conduct contrary to s112 EqA 2010. These allegations are denied in full by the Respondents.

Mr Sarnoff lives and works in the US and, in addition to challenging territorial jurisdiction, argues that rule 31 ET Rules 2013 (“the Tribunal may order any person in Great Britain to disclose documents…”) precluded the ET from making disclosure orders against parties based overseas.

The EAT (Kerr J) dismissed Mr Sarnoff’s appeal, adopting the Claimant’s submissions that such an interpretation would have absurd and regressive consequences, impede the overriding objective and likely amount to a contravention of Article 6 ECHR and the EU principle of effectiveness.

The appeal is a milestone in two respects. It provides definitive guidance on the extraterritorial effect of rule 31. It is also understood to be the first substantive “Covid hearing” to reach judgment: all proceedings took place remotely. Cloisters has been at the cutting-edge of efforts to ensure that virtual hearings can take place effectively and its demonstrations have been praised by practitioners and the judiciary alike.

The full judgment can be read here. The decision has also been the subject of media commentary. The EAT has granted Mr Sarnoff permission to proceed to the Court of Appeal.