Revenge porn accused yet to pay $12 million to victim

The software engineer who was ordered to pay a Jamaican attorney over $12 million for allegedly causing the leak of photos and videos of their sexual encounter is facing “financial hardship”, his attorney has claimed.

But the claim by Rodrick Brown's attorney D'Angello Foster failed to convince the Court of Appeal to halt enforcement of the multimillion-dollar award, which was made last September in a groundbreaking revenge porn lawsuit filed by attorney Kimberley Facey.

“Impecuniosity is a hardship, but not a factor that by itself a judgment debtor can validly complain exposes him to a risk of injustice,” the judges of the Court of Appeal said in a ruling on Thursday.

Brown, who is based in the United States, has made no payment on the $12-million award, which he is appealing, according to Court of Appeal records.

The legal process to enforce a charging order granted by the Supreme Court against properties he owns is “far advanced”, a source disclosed to The Sunday Gleaner yesterday.

An 'urgent without notice' application filed by Brown in the Court of Appeal on February 29 this year to stay enforcement of the $12-million award was partially successful, court records show.

Appeal Court judge Justice Evon Brown, who heard the application, granted an interim stay on the condition that the software engineer pays $2.5 million to Facey's attorneys within 14 days.

Justice Brown also ordered that a hearing of the application was to be set with all the parties “on the fulfilment of the condition”.

But without meeting the condition, the software engineer went back to the Court of Appeal, this time seeking an unconditional stay of the multimillion-dollar award or a six- to eight-week extension to comply with the $2.5 million payment stipulated by Justice Brown.

NEED MORE TIME

Foster, Brown's attorney, argued that the software engineer's “financial hardship”, coupled with the looming application before the Supreme Court to finalise the charging order over his properties, were indicative of the need for an unconditional stay of the $12-million award.

In the alternative, the attorney indicated that his client will need to obtain personal loans and said the six- to eight-week extension would allow him time to fulfil the condition.

But in refusing the application, the Court of Appeal said it has not been demonstrated that there is a good reason for Facey to be deprived of the “fruits of her judgment”, noting that “no portion of the award has been paid, even though aspects are unchallenged”.

The court noted that there were several issues it had to consider in trying to resolve whether to set aside or vary the order of Justice Brown.

Among them, it said, were whether Justice Brown was wrong in law and in principle or whether he misconceived the facts; whether the software engineer's appeal had some prospects of success; and if so, whether there is a real risk of injustice if the stay is granted or refused.

But in the end, the judges said they agreed with Facey's attorneys that insufficient materials were placed before the court to support the likelihood of a finding, during the appeal, that the $12-million award was inordinately disproportionate.

While noting that based on this finding “we need not go further to consider where the risk of injustice lies”, the judges made it clear that “had it been important to our decision, the balance lies firmly in favour of the respondent”.

They noted that Facey resides in Jamaica and indicated that Brown did not put forward any reason to fear that he would be unable to recover any sums due to him if he paid the award and was subsequently successful on appeal.

Conversely, Brown resides outside of the jurisdiction, though he has some local assets, they acknowledged.

FIGHT BACK

The leaked photos and videos, which were splashed across some of the more popular social media platforms, showed Facey and Brown engaging in sexual activities inside a St Andrew apartment in July 2020.

Brown was ordered to pay Facey $11 million in damages with three per cent interest dating back to October 2020, and $480,000 for future medical care following an assessment hearing in the Supreme Court last September.

He was also ordered to destroy all videos and/or images of Facey that are in his possession or control and a final injunction bars him or his agent from releasing, posting or uploading the images.

Facey described in her lawsuit the embarrassment as well as the mental and emotional anguish she endured after she was alerted via social media to one of the video recordings.

But in February this year she told The Sunday Gleaner that she elected to file the lawsuit in her name rather than anonymously because “I am somebody”.

The attorney indicated, too, that she wants her case to be a powerful example to both men and women that they do not have to cower in silence, but that they can fight back.

“Kim Facey was attacked and Kim Facey answered. The case was personal to me,” she said at the time.

livern.barrett@gleanerjm.com