Factual and Procedural Background
This is a claim for harassment arising from a family dispute between two brothers, the Plaintiff and the Defendant. The Plaintiff alleges that the Defendant harassed him by sending over 70 emails over approximately nine months, which were described as abusive, threatening, and defamatory communications directed at the Plaintiff, his associates, and third parties. The Plaintiff issued a Claim Form on 7 February 2018, alleging breach of the Protection from Harassment Act 1997. Particulars of Claim had not been served at the time of the hearing. Permission was granted by Master Yoxall to anonymise both parties initially. The Plaintiff also sought an interim injunction to restrain the Defendant from further harassment. The injunction application was heard on 9 February 2018, with the Defendant representing himself. Judgment was reserved.
The hearing was conducted in private initially to preserve the anonymity order, but the anonymity order was later discharged and the judgment given in open court.
The Plaintiff is an entrepreneur and investor involved in multiple tech start-ups, including a significant role at Company A (Spotify). The Defendant is a senior financial sector professional based in the UK. The dispute originated from the Defendant's use of the Plaintiff's name and profile in connection with an online sales platform (Carbaya), which the Plaintiff denied involvement with. The Defendant contends he believed he had the Plaintiff’s consent.
The Defendant sent numerous emails alleging the Plaintiff had concealed his spent convictions and misrepresented his background, which the Plaintiff claims caused distress and harmed his reputation. The Defendant also raised concerns related to regulatory disclosure obligations linked to an impending public listing of Company A.
The Plaintiff sought an interim injunction to restrain the Defendant’s conduct, which was opposed by the Defendant, who maintained his allegations were true and the claim was a disguised defamation action.
Legal Issues Presented
- Whether the Defendant’s course of conduct amounts to harassment under the Protection from Harassment Act 1997.
- Whether the Plaintiff is likely to succeed at trial in establishing harassment justifying an interim injunction.
- The application of the Human Rights Act 1998, particularly the Defendant’s right to freedom of expression under Article 10, balanced against the Plaintiff’s rights under Article 8.
- The applicability of the defamation rule in harassment claims where the gravamen of the complaint is reputational harm.
- The appropriateness of anonymity orders and hearings in private in harassment claims involving publication of private information.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant engaged in a persistent and oppressive campaign of harassment by sending numerous abusive and defamatory emails over nine months.
- The emails caused the Plaintiff distress, anxiety, and reputational harm, including harm to his professional relationships and personal wellbeing.
- The Defendant’s conduct is not reasonable or justified, and the repeated communications go beyond legitimate complaint, amounting to harassment contrary to the Protection from Harassment Act 1997.
- The Plaintiff seeks an interim injunction to restrain the Defendant’s course of conduct to prevent further harm.
- The Plaintiff contends the Defendant breached an undertaking not to publish information about the Plaintiff’s spent convictions.
Defendant's Arguments
- The Defendant maintains that his allegations about the Plaintiff’s background and conduct are true and relate to investor protection and regulatory disclosure obligations.
- The claim is a disguised defamation action aimed at protecting the Plaintiff’s reputation rather than addressing genuine harassment.
- The Defendant asserts his conduct is reasonable and motivated by a moral, legal, and fiduciary responsibility to warn investors and regulators about material information.
- The Defendant contends that if Company A and the Plaintiff had engaged with his concerns, the persistent correspondence would not have been necessary.
- The Defendant apologised for any overzealous language but denies that his conduct amounts to harassment.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| American Cyanamid Co Ltd -v- Ethicon Ltd [1975] AC 396 |
Test for granting interim injunctions in non-speech harassment cases. |
Referenced to contrast with the higher threshold for injunctions affecting freedom of expression under s.12 Human Rights Act 1998. |
| Cream Holdings Ltd -v- Banerjee [2005] 1 AC 253 |
Definition of "likely" as "more likely than not" for interim injunctions restraining publication. |
Applied to establish the standard the Plaintiff must meet to obtain an injunction. |
| YXB -v- TNO [2015] EWHC 826 (QB) |
Clarification of the test under s.12(3) Human Rights Act 1998 for interim injunctions affecting free speech. |
Used to explain that the Plaintiff must show probable success at trial to restrain publication. |
| DPP -v- H [1997] 1 WLR 1406 |
Objective test for harassment under the Protection from Harassment Act 1997. |
Applied to assess whether the Defendant’s conduct objectively amounts to harassment. |
| Hourani -v- Thomson [2017] EWHC 432 (QB) |
Definition of harassment as persistent, deliberate, unreasonable and oppressive conduct causing alarm or distress. |
Guided the Court’s assessment of the seriousness of the Defendant’s conduct. |
| Majrowski -v- Guy's and St Thomas's NHS Trust [2007] 1 AC 224 |
Clarification of the threshold for harassment crossing from unreasonable to criminally liable conduct. |
Informed the Court’s evaluation of whether the conduct was oppressive and unacceptable. |
| Dowson -v- Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) |
Requirement of conduct on at least two occasions to amount to harassment. |
Confirmed the necessity of repeated conduct for harassment claims. |
| Trimingham -v- Associated Newspapers Ltd [2012] EWHC 1296 (QB) |
Importance of freedom of expression and caution against harassment claims silencing speech. |
Emphasised the need to protect freedom of expression in harassment claims involving publication. |
| R -v- Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 |
Freedom of expression as vital to democracy and the need for strict interpretation of restrictions. |
Supported the balancing of Article 8 and Article 10 rights in the Court’s reasoning. |
| Nilsen and Johnsen -v- Norway (1999) 30 EHRR 878 |
Freedom of expression includes information that may offend or disturb and requires strict construction of restrictions. |
Reinforced the Court’s approach to freedom of expression limitations. |
| Merlin Entertainments LPC & Others v- Cave [2014] EWHC 3036 (QB) |
Harassment claims involving statements that may be true but accompanied by oppressive conduct. |
Instructed the Court to focus on conduct rather than solely on truth of statements. |
| Bonnard -v- Perryman [1891] 2 Ch 269 |
Defamation rule: courts reluctant to restrain publication where defendant intends to justify statements. |
Applied to refuse injunction where the claim was essentially reputational. |
| Fraser -v- Evans [1969] 1 QB 349 |
Defamation rule supporting freedom of expression at interim injunction stage. |
Supported refusal of injunction restraining publication of potentially defamatory statements. |
| Greene -v- Associated Newspapers Ltd [2005] QB 972 |
Upholding the defamation rule post-Human Rights Act 1998. |
Confirmed that defamation law principles continue to apply to interim injunctions. |
| LJY -v- Persons Unknown [2017] EWHC 3230 (QB) |
Impact of defamation rule on harassment claims aimed at protecting reputation. |
Used to identify abuse of process where harassment claims mask defamation claims. |
| McKennitt -v- Ash [2008] QB 73 |
Abuse of process where breach of confidence claims are used to circumvent defamation rules. |
Guided the Court’s scrutiny of the true nature of the Plaintiff’s claim. |
| Service Corporation International Plc -v- Channel Four Television Corporation [1999] EMLR 83 |
Defamation rule applies where claims seek protection of reputation under alternative causes of action. |
Supported the Court’s conclusion that the claim was essentially about reputation. |
| Cushnahan -v- BBC & Another [2017] NIQB 30 |
Defamation rule applies where the gravamen of the claim is reputational harm. |
Reinforced the Court’s analysis of the claim’s true purpose. |
| Viagogo Ltd -v- Myles & Others [2012] EWHC 433 (Ch) |
Assessment of the true gist and purpose of a claim to determine applicability of defamation rule. |
Assisted in identifying the claim as primarily reputational. |
| Browne -v- Associated Newspapers Ltd [2007] EMLR 19 |
Cannot circumvent defamation rules by choosing another cause of action. |
Supported refusal of injunction on the basis of defamation rule. |
| JIH -v- News Group Newspapers Ltd [2011] 1 WLR 1645 |
Principles governing anonymity orders and balancing open justice with privacy rights. |
Informed the Court’s decision to discharge anonymity order. |
| R -v- Hasan [2005] 2 AC 467 |
Limitations on making s.11 orders after disclosure of identity in open court. |
Applied to explain limits on anonymity orders in this case. |
| Attorney-General -v- Leveller Magazine Ltd [1979] AC 440 |
Necessity for anonymity or private hearings to avoid frustrating administration of justice. |
Guided the Court’s assessment of necessity for anonymity and private hearing. |
| Scott -v- Scott [1913] AC 417 |
Fundamental principle of open justice and exceptions thereto. |
Supported the Court’s approach to open justice and limited exceptions. |
| R -v- Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966 |
Principles limiting interference with open justice and public nature of court proceedings. |
Guided rejection of blanket anonymity order. |
| ZAM -v- CFW [2013] EMLR 27 |
Use of anonymity orders in civil cases involving private and family life rights. |
Referenced in balancing Article 8 and open justice. |
| Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 |
Balancing competing Convention rights in court proceedings. |
Supported the Court’s balancing test for anonymity and open justice. |
Court's Reasoning and Analysis
The Court carefully analysed the Defendant’s conduct in light of the Protection from Harassment Act 1997, relevant case law, and the competing rights under the Human Rights Act 1998. The Court noted that harassment requires a persistent and oppressive course of conduct causing alarm or distress, judged objectively.
The Defendant’s emails were numerous and persistent, but the Court found that the distress caused to the Plaintiff was largely due to the content of the emails and their dissemination to third parties rather than the manner or frequency of delivery. The emails did not cross the threshold from unreasonable annoyance to oppressive and unacceptable conduct that would sustain criminal liability under the Act.
The Court acknowledged that some emails contained language suggestive of threats, but these lacked clarity, consistency, and had not been acted upon. The Defendant’s conduct was contextualised as efforts to compel disclosure of information relating to the Plaintiff’s spent convictions and regulatory compliance, which the Defendant believed were material to an impending public offering of Company A.
The Court found that the Defendant’s conduct might be defended as reasonable pursuit of a legitimate concern, and that the Plaintiff had not demonstrated that he was likely to succeed at trial on the harassment claim.
Importantly, the Court identified that the gravamen of the Plaintiff’s complaint was reputational harm, and that the claim was effectively a defamation claim disguised as harassment. The defamation rule, which protects freedom of expression by limiting interlocutory injunctions in defamation cases, applied and weighed against granting the injunction.
Regarding anonymity, the Court held that the anonymity order was unjustified as this was not a privacy claim but a harassment claim. Since the Plaintiff had publicly disclosed aspects of his spent convictions, and the administration of justice would not be frustrated by identification, the anonymity order was discharged.
The Court emphasised the importance of open justice and the need for any derogation, such as anonymity or private hearings, to be strictly necessary. It also highlighted the need for injunctions to be clear and proportionate, especially when interfering with freedom of expression rights.
Holding and Implications
The Court REFUSED the Plaintiff’s application for an interim injunction restraining the Defendant’s conduct.
The Court held that the Plaintiff had not demonstrated a likelihood of success at trial on the harassment claim. The Defendant’s conduct, while persistent and distressing, did not meet the threshold for harassment under the Protection from Harassment Act 1997. The conduct was closely linked to concerns about reputational harm and regulatory disclosure, and thus the defamation rule applied, precluding interlocutory relief.
The anonymity order previously granted was discharged, allowing the parties to be publicly identified and the judgment to be published without restriction. The Court noted that any interference with open justice must be justified by necessity, which was not established here.
The direct effect of this decision is that the Defendant is not restrained from continuing his communications, subject to the outcome at trial. No new legal precedent was established; rather, established principles concerning harassment, freedom of expression, and the defamation rule were applied to the facts of this case.