Factual and Procedural Background
This appeal concerns a claim under the Protection from Harassment Act 1997 brought by the Appellant, a solicitor-advocate, against the Respondents, a small firm of solicitors who previously employed him. The claim arises from a series of letters sent by the Respondents to the Appellant that allegedly impugned his professional and personal integrity. The claim was summarily struck out at a preliminary stage as not presenting an arguable case of harassment under the Act.
The Appellant worked part-time for the Respondents in early 2006 and ceased employment on 31 March 2006. The Respondents had clients involved in litigation against a third party, Mr Butt, who instructed the Appellant in those proceedings. The Respondents sent three letters to the Appellant’s firm during the course of the litigation, which form the basis of the harassment claim.
The claim was initially commenced as a Part 7 claim, contrary to the Civil Procedure Rules (CPR) requirement that claims under the Act be brought under the Part 8 procedure. The Respondents served a lengthy defence containing allegations against the Appellant, including misconduct and bigamy, and counterclaimed for harassment. The claim was struck out by the first instance judge on jurisdictional and substantive grounds. Permission to appeal was granted, and the first appeal judge found the claim was not without merit but held that a partnership could not be sued under the Act.
This is a second appeal concerning the proper interpretation of the Act and procedural issues arising from the claim and defence.
Legal Issues Presented
- Whether each of the three letters sent by the Respondents is capable of constituting harassment under the Protection from Harassment Act 1997.
- Whether the three letters together amount to a "course of conduct" capable of constituting harassment within the meaning of the Act.
- Whether the Respondents’ defence, which post-dates the claim form, can be relied upon as evidencing a course of conduct amounting to harassment.
- Whether a partnership can be a defendant in civil proceedings under section 3 of the Protection from Harassment Act 1997.
Arguments of the Parties
Appellant's Arguments
- The three letters collectively form a course of conduct amounting to harassment under the Act.
- The letters are capable of causing alarm or distress and are oppressive and unreasonable, going beyond mere litigation conduct.
- The defence filed by the Respondents evidences further instances of harassment and supports the interpretation of the letters as part of a course of conduct.
- A partnership can be sued under the Act as the statutory definition of "person" includes unincorporated bodies.
Respondents' Arguments
- The first two letters are not oppressive or unreasonable and do not constitute harassment.
- The third letter, while arguably capable of harassment, is only a single incident and does not amount to a course of conduct.
- The defence cannot be relied upon to constitute a course of conduct as it post-dates the claim form.
- A claim cannot be brought against a partnership under the Act because of difficulties in attributing mens rea and liability.
- The allegations against the Appellant, including misconduct and bigamy, justify the content of the letters and defence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Thomas v. News Group Newspapers Limited [2001] EWCA Civ 1233 |
Definition of harassment as conduct targeted at an individual that is oppressive and unreasonable; press publications rarely amount to harassment unless exceptional circumstances exist. |
Guided the court’s interpretation of harassment, emphasizing the need for conduct to be oppressive and unreasonable, beyond mere distress caused by legitimate criticism. |
| Majrowski v. Guy's and St Thomas' NHS Trust [2006] UKHL 34 |
Employers can be vicariously liable for harassment by employees; courts must distinguish between mere annoyances and truly oppressive conduct. |
Supported the court’s view that harassment must be of a serious nature and that vicarious liability applies in civil claims under the Act. |
| Kelly v. Director of Public Prosecutions [2002] EWHC Admin 1428 |
Clarified that a course of conduct requires multiple occasions and that alarm need not be caused on each occasion. |
Helped the court determine that multiple related acts can constitute a course of conduct even if alarm is caused only once. |
| Alfred C Toepfer v. Peter Cremer [1975] 2 Lloyd's Rep 118 (CA) |
Practice rule allowing courts to depart from strict procedural rules when justice requires. |
Used to justify considering post-claim form conduct (such as the defence) as evidence of a course of conduct for harassment claims. |
| Maridive and Oil Services (SAE) v. CNA Insurance Co (Europe) Ltd [2002] EWCA Civ 369 |
Similar to Alfred C Toepfer, supports flexibility in procedural rules to achieve justice. |
Supported the court's approach to considering post-claim conduct in harassment claims. |
| Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty [2003] EWHC 1967 |
Unincorporated bodies can be defendants under the Act. |
Supported the view that unincorporated bodies, such as partnerships, may be liable under the Act. |
| Dubai Aluminium Co Ltd v. Salaam [2002] UKHL 48 |
Partnerships can be vicariously liable for partners' torts. |
Used to argue that partnerships can be liable for harassment committed by partners. |
| W Stevenson & Sons v. R [2008] EWCA Crim 273 |
Considered criminal liability of partnerships and partners; distinguished liability based on mens rea. |
Discussed by the court but distinguished as not directly applicable to civil liability under the Act. |
| R v. L [2008] EWCA Crim 1970 |
Unincorporated bodies can be prosecuted under strict liability statutes; reserved position on statutes requiring mens rea. |
Considered in relation to whether partnerships can be liable under the Act; court found no reason to exclude partnerships from civil liability. |
Court's Reasoning and Analysis
The court examined whether the three letters sent by the Respondents could individually or collectively amount to harassment under the Protection from Harassment Act 1997. The court emphasized that harassment requires a "course of conduct" involving at least two occasions and conduct that is oppressive and unreasonable, not merely conduct that causes distress.
Applying the test from Thomas v. News Group Newspapers, the court found that each letter, particularly when viewed together, is arguably capable of constituting harassment. The letters went beyond legitimate litigation conduct and included serious attacks on the Appellant’s professional and personal integrity, potentially pressurizing him to abandon his client or concede to the Respondents' demands.
The court rejected the earlier judge’s approach of assessing the letters individually without considering their cumulative effect as a course of conduct. It held that the three letters were sufficiently connected in time and subject matter to be viewed as a course of conduct.
Regarding the defence filed by the Respondents, the court considered it could be used as evidential support to interpret the letters and their context, even though it post-dated the claim form. The court ruled that excluding the defence on procedural grounds was an error, as the Act contemplates apprehended breaches and the courts have discretion to depart from strict procedural rules for justice.
On the issue of whether a partnership can be sued under the Act, the court analyzed statutory definitions and case law. It found that the Interpretation Act 1978 includes unincorporated bodies within the meaning of "person" and that civil claims under the Act have been brought against such bodies. The court distinguished criminal liability issues from civil liability and concluded that partnerships can be defendants under section 3 of the Act. The court rejected the argument that mens rea requirements preclude suing partnerships in civil claims.
The court also noted procedural complexities regarding identification of defendants but held these are matters of procedure and do not negate jurisdiction under the Act.
Holding and Implications
The court granted permission to appeal and allowed the appeal, thereby reinstating the Appellant's claim for harassment under the Protection from Harassment Act 1997.
Holding: The three letters sent by the Respondents are each capable of constituting harassment, and together they amount to a course of conduct that can found a claim under the Act. The Respondents’ defence can be considered evidentially despite post-dating the claim form. A partnership can be sued under section 3 of the Act.
Implications: The decision clarifies that individual acts of potential harassment must be considered cumulatively as a course of conduct rather than in isolation, preserving the protective scope of the Act. It confirms that unincorporated bodies such as partnerships are liable in civil harassment claims, aligning with principles of vicarious liability. The ruling underscores the courts’ willingness to look beyond procedural technicalities to ensure substantive justice in harassment claims. No new precedent beyond the interpretation of the Act and procedural matters was established. The parties were encouraged to consider mediation to resolve their dispute.