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Cavan v Bunting
Court of Appeal — Summary of Opinion (Anonymised)
Factual and Procedural Background
The Plaintiff attended a children's storytime event at The Venue on 31 July 2022 performing in a stage persona. The Defendant attended the same event with Group A to protest. In early August 2022 the Defendant made multiple public posts and videos on social media and gave interviews criticising the practice of drag‑performer storytime and linking that practice to allegations of sexualised conduct by other individuals. Some posts used images and edited audio of the Plaintiff. The Plaintiff alleged he was targeted, received threats and suffered anxiety and loss of work as a result.
The Plaintiff obtained an ex parte interim injunction on 9 August 2022 restraining the Defendant from harassing him and specifically requiring removal of a specified video. The Defendant continued to post the video until committal proceedings were brought. Contempt findings and penalties followed; at a full hearing the county court judge made a five‑year permanent injunction on 22 May 2023 in terms set out in the judgment and imposed sanctions for contempt which were later affirmed on appeal. The case was referred to this Court by way of case stated to answer two legal questions posed by the trial judge.
Legal Issues Presented
- Whether the trial judge was correct in law to make the injunction based on her findings of material fact, the legal test for harassment under the Protection from Harassment (Northern Ireland) 1997, and having regard to the Defendant's rights under Article 10 ECHR and section 12 of the Human Rights Act 1998.
- Whether the injunction was sufficiently particularised to be effective in law by enabling the Defendant to understand and avoid breaching it.
Arguments of the Parties
Appellant's Arguments (as advanced on appeal)
- The trial judge was wrong to find a "course of conduct" targeted at the Plaintiff of sufficient seriousness to constitute harassment (this point had not been raised below).
- The finding of harassment and the injunction constituted a disproportionate and unjustified restriction on the Defendant's Article 10 ECHR rights.
Respondent's Arguments
- The trial judge made factual findings which this Court should not disturb unless plainly wrong; she correctly applied the law and was entitled to find a course of conduct amounting to harassment because the Defendant linked the Plaintiff personally with child grooming and paedophilia.
- Any restriction on Article 10 rights was justified and proportionate in the circumstances.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| DB v Chief Constable of Northern Ireland [2017] UKSC 7 | Appellate standard: intervene only if trial judge was "plainly wrong". | Applied to emphasise deference to the trial judge's factual findings on a case stated. |
| Edwards v Bairstow [1956] AC 14 | Focus of the case‑stated procedure. | Referred to when considering suitability of case stated route and procedural focus. |
| Thomas v News Group Newspapers [2001] EWCA Civ 1233 | Publications require exceptional circumstances to constitute harassment; Article 10 protects offensive or shocking speech. | Used to underline rarity of harassment findings based on publications alone and need for exceptional factors. |
| Hayden v Dickenson [2020] EWHC 3291 | Comprehensive statement of legal principles for harassment claims (including definition, seriousness threshold, objective test, Article 10 considerations). | Primary source for extracting legal principles applied to assess whether conduct amounted to harassment and for Article 10 balancing. |
| Thomas -v- News Group Newspapers [2002] EMLR 4 | That press criticism, even if robust, generally does not constitute harassment; exceptional circumstances required. | Reinforced the principle that only exceptional journalistic abuses justify harassment remedies. |
| Majrowski -v- Guy's and St Thomas's NHS Trust [2007] 1 AC 224 | Seriousness threshold: conduct must be grave before civil or criminal harassment is established. | Relied on as part of the framework assessing gravity of conduct. |
| Ferguson -v- British Gas Trading Ltd [2009] EWCA Civ 46 | A course of conduct must be grave to sustain harassment liability. | Referenced in assessing whether conduct crossed from unreasonable to oppressive. |
| Dowson -v- Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) | Objective test for whether conduct ought to be known to be harassment. | Used to support objective assessment of the harmful tendency of statements. |
| Trimingham -v- Associated Newspapers Ltd [2012] EWHC 1296 (QB) | Article 10 engagement and protection of press freedom; need for exceptional circumstances. | Referenced regarding interplay between freedom of expression and harassment claims. |
| [2012] 4 All ER 717 | Associated citation to Trimingham principles on Article 10 and harassment. | Supportive authority for the Article 10 protection analysis. |
| Hayes -v- Willoughby [2013] 1 WLR 935 | Definition: harassment involves a persistent and deliberate course of targeted oppression causing alarm or distress. | Integrated into the court's assessment of whether conduct met the harassment definition. |
| R -v- Smith [2013] 1 WLR 1399 | Not every conduct causing distress amounts to harassment; s.7(2) is guidance not exhaustive. | Used to caution against equating any distress with harassment. |
| Law Society -v- Kordowski [2014] EMLR 2 | Limits on public humiliation and abuse of freedom; truth may not be determinative. | Referenced on limits to abusive public commentary and relevance of truth. |
| Merlin Entertainments LPC -v- Cave [2015] EMLR 3 | Truth is not necessarily an answer; publication manner matters. | Supported view that manner of publication can create oppressive element beyond content. |
| Levi v- Bates [2016] QB 91 | Those targeted can include others foreseeably harmed by the conduct. | Cited in considering whether the Plaintiff was a foreseeable direct target. |
| Hourani -v- Thomson [2017] EWHC 432 (QB) | Article 10 and Article 8 balancing; conduct must be necessary and proportionate to restrict expression. | Used in the proportionality and balancing analysis. |
| Khan -v- Khan [2018] EWHC 241 (QB) | Manner of publication often more significant than content in establishing oppression. | Referenced when evaluating the manner in which social media material was disseminated. |
| Hilson -v- Crown Prosecution Service [2019] EWHC 1110 (Admin) | Context and manner of publication are all‑important; public domain material can still amount to harassment. | Supported the point that public availability does not preclude harassment liability. |
| Sube -v- News Group Newspapers Ltd [2020] EMLR 25 | Assessment of harmful tendency must be objective; exceptional cases required for journalistic material. | Referred to in relation to standards for journalistic publications and harassment. |
| Conn -v- Sunderland City Council [2007] EWCA Civ 1492 | Seriousness threshold and context considerations. | Used to underpin the requirement that conduct be grave to constitute harassment. |
| ZAM -v- CFM [2013] EWHC 662 (QB) | Where allegations are false, stronger public interest in preventing publication or remedies. | Referenced on the significance of falsity in overall assessment. |
| Redmond-Bate -v- DPP [2000] HRLR 249 | Article 10 protects speech that offends, shocks or disturbs; freedom to speak inoffensively is not the standard. | Used to remind of the breadth of protected expression in balancing exercises. |
| McNally v Saunders [2021] EWHC 2012 (QB) | Application of Thomas and Hayden; enhanced protection for political speech and modern social media context. | Referred to when considering political speech, social media targeting and blocking as self‑help. |
| Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) | Enhanced protection for political speech. | Used to support principle that political speech attracts elevated Article 10 protection. |
| In re S [2005] 1 AC 593 | Ultimate balancing test for conflicting Convention rights (Article 8 v Article 10). | Referred to as the framework for resolving competing Convention rights. |
| King v Sunday Newspapers Ltd [2011] NICA 8 | Domestic authority on freedom of expression in harassment context. | Referred to and applied in the Article 10 assessment. |
| Nilsen & Johansen v Norway (1999) 30 EHRR 878 | High level of protection for political speech and commentary on matters of public interest. | Used to frame the Convention standards to which the trial judge was to have regard. |
Court's Reasoning and Analysis
The Court proceeded on the factual findings contained in the case stated which it was required to accept unless plainly wrong. The trial judge's core factual findings were that:
- The Defendant's tweet of 4 August 2022 and the video posted on 7 August 2022 (together with associated social posts) constituted at least two relevant incidents forming a "course of conduct" for purposes of the 1997 Order.
- The Defendant's publications and edited audio/images targeted the Plaintiff by linking him to child grooming and paedophilia; the manner of publication (edited interview, deepened voice, juxtaposed underwear images and a wolf image) supported that inference.
- The conduct was oppressive and unreasonable and caused the Plaintiff distress, threats, medical anxiety treatment and loss of work, as found on evidence.
Applying the statutory test in the Protection from Harassment (Northern Ireland) 1997 and the legal principles extracted from the authorities (in particular the principles set out in Hayden v Dickenson and Thomas), the Court examined whether the interference with the Defendant's Article 10 rights was justified and proportionate. The Court concluded that the trial judge had addressed Article 10 and section 12(4) HRA considerations, adopted the correct balancing approach (including reference to domestic and Strasbourg authority on political speech), and that the exceptional combination of content and manner of publication meant the conduct crossed the line from protected expression into unlawful harassment.
The Court further noted that some later reposting after the interim injunction led to contempt proceedings, but the two pre‑proceedings incidents were sufficient to satisfy the "two or more incidents" requirement of Article 2 of the 1997 Order.
Holding and Implications
HOLDING: The Court answered both questions posed by the trial judge in the affirmative and found no error of law in the trial judge's findings or in her decision to grant the injunction. The trial judge's injunction and her assessment of proportionality were upheld.
Implications:
- The permanent injunction as made by the county court remains effective; the Court observed the injunction was proportionate in the circumstances described in the case stated.
- The Court recognised scope for variation and invited the parties to agree any variation within three weeks; the order expressly permits liberty to apply to vary or discharge the injunction in the county court.
- Costs and any final administrative steps remain to be determined; no new legal precedent beyond application of established authorities was created by this decision.
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