Factual and Procedural Background
This appeal arises from a judgment given by His Honour Judge Owen QC in the Nottingham County Court on 10 June 2016 following a three-day trial. The judge found that the Defendant housing association, referred to as the Association, had unlawfully harassed two of its tenants, the Plaintiffs, contrary to section 1 of the Protection from Harassment Act 1997 (the 1997 Act). Damages were awarded to the Plaintiffs for anxiety and distress caused by the harassment.
The factual background concerns events occurring in 2007 and 2008 in Chesterfield involving the Plaintiffs, who were long-term assured tenants of the Association. Both Plaintiffs were concerned about antisocial behaviour in their neighbourhood and had taken security measures, including the installation of CCTV equipment with the Association’s consent. A dispute arose when the Association, particularly through a junior employee, Mr Kotecha, challenged the use of this CCTV equipment and alleged breaches of tenancy related to privacy invasions and inappropriate photography.
The Association received complaints from neighbours and took steps including meetings with the Plaintiffs, legal advice, and sending letters threatening possession proceedings and injunctions. The judge found that the Association’s approach was flawed, lacking proper investigation and supervision, and that the threatening correspondence was unjustified and oppressive, causing alarm and distress to the Plaintiffs.
The Association appealed the judgment on two grounds: that the conduct did not meet the threshold for harassment under the 1997 Act, and that the conduct was reasonable. Permission to appeal was granted by Henderson LJ.
Legal Issues Presented
- Whether the Defendant’s course of conduct amounted to harassment within the meaning of section 1 of the Protection from Harassment Act 1997.
- Whether the Defendant’s conduct was reasonable such that the defence under section 1(3)(c) of the 1997 Act applied.
- Whether the judge erred in law by failing to identify and analyse each element of the alleged course of conduct.
- Whether the judge properly considered the gravity of the conduct and whether it crossed the threshold from unreasonable to oppressive and unacceptable.
- Whether the judge correctly applied the test of what a reasonable person in possession of the same information would think about the conduct.
Arguments of the Parties
Appellant's Arguments
- The judge failed to identify each specific act constituting the course of conduct and instead relied on a period of correspondence, leaving the Defendant uncertain about the basis of the harassment finding.
- The judge did not adequately assess whether the conduct was of sufficient gravity to amount to harassment under the 1997 Act and would have dismissed the claim if he had.
- The judge failed to properly apply the test under sections 1(1)(b) and 1(2) of the 1997 Act regarding what a reasonable person would think of the conduct.
- The judge did not analyze the critical letters individually or collectively with sufficient rigour and failed to take into account relevant evidence, including complaints received, legal advice obtained, and the reasonableness of the Association’s actions.
- The threatening letters were reasonable and moderate, consistent with actions regularly taken by social housing landlords to protect tenants.
Appellee's Arguments
- The judge reached the correct conclusion after a detailed evaluation of the evidence and legal principles.
- There was no material dispute as to the legal framework, and the judge properly directed himself on the law.
- The judge’s findings about the oppressive, unjustified, and unwarranted nature of the Association’s conduct were supported by the evidence and should not be disturbed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34 |
Defines the boundary between unacceptable harassment and mere annoyances; harassment must be of a gravity sufficient for criminal liability under s.2 of the 1997 Act. |
The court applied the principle that conduct must cross from unreasonable to oppressive and unacceptable to constitute harassment. |
| Sunderland City Council v Conn [2007] EWCA Civ 1492 |
Context is crucial in assessing whether conduct is oppressive and unacceptable; the touchstone is whether conduct is of sufficient gravity to justify criminal sanctions. |
The court considered the context and gravity of the Association’s conduct, confirming it was oppressive and unacceptable harassment. |
| Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233 |
Clarifies the requirement that the course of conduct must have the quality of harassment rather than each individual act. |
The court held that the judge correctly considered the correspondence as a whole in determining the course of conduct. |
Court's Reasoning and Analysis
The court carefully reviewed the statutory framework of the Protection from Harassment Act 1997, emphasizing that harassment involves a course of conduct on at least two occasions that is oppressive and unacceptable, crossing the threshold to criminal liability. The judge’s findings were supported by evidence that the Association’s conduct was careless, flawed, and undertaken without proper investigation or supervision, particularly through the actions of a junior employee who wrongly insisted on the removal of CCTV equipment lawfully installed for security.
The judge found that the threatening letters sent by the Association and its solicitors were inaccurate, unjustified, and likely to cause alarm and distress. The court rejected the Association’s argument that the letters were reasonable and routine, noting the particular vulnerability of social housing tenants to threats of eviction. The judge also discounted evidence from police officers due to lack of professionalism and found that the Association ignored sensible advice to investigate properly before threatening legal action.
The appeal court held that the judge had correctly identified and analyzed the relevant correspondence and conduct as a whole, and had properly applied the test of whether a reasonable person would consider the conduct to amount to harassment. The court found no error in the judge’s conclusion that the Association’s conduct was oppressive, unacceptable, and amounted to harassment under the 1997 Act.
Holding and Implications
The court DISMISSED the appeal, affirming the judgment that the Association unlawfully harassed the Plaintiffs in breach of the Protection from Harassment Act 1997.
The direct effect is that the Plaintiffs’ claims for damages were upheld, and the Association’s conduct was found to be oppressive and unjustified. The decision reinforces the principle that social housing providers must exercise care, proper investigation, and proportionality before threatening possession or injunction proceedings, particularly where tenants’ security measures and concerns about antisocial behaviour are involved. No new precedent was established beyond the application of well-settled principles of harassment law to the facts of this case.