Local Government - July 2009

Has the Court of Appeal removed the requirement to prove conduct of a criminal nature in civil proceedings for harassment?

Carlos Allen v London Borough of Southwark (12/11/08)
Lisa Ferguson v British Gas Trading Limited (10/02/09)

Two cases recently heard in the Court of Appeal have reopened the issue as to what behaviour constitutes harassment. Unfortunately, the Court of Appeal has not provided any clear answers. The case of Ferguson in particular, whilst providing no definitive answers, appears to have changed the traffic lights from red to amber (if not quite green) and reopened the debate which, as a result of Conn, seemed to have reached conclusion & provided the certainty which avoided litigation.

The requirement that the conduct complained of is “oppressive and unacceptable” lives on although decisions in substantive claims (as opposed to appeals against strike out decisions) are needed before it can be seen how this apparent relaxing of the requirement is applied in practice. In the meantime more claims can be expected.

Background

For a claim under the Protection of Harassment Act (PHA) 1997 to be successful, it must be demonstrated that conduct complained about occurred on at least 2 occasions, caused the victim to feel harassed alarmed or distressed and that the alleged perpetrator knew or should have known that that was the case.

In 2005, the House of Lords in the case of Majrowski made it clear that employees could pursue a claim under the Act against their employers by confirming that the principle of vicarious liability applied to harassment within the workplace.

In addition importantly Lord Nichols identified the need for the conduct complained about to be sufficient to establish criminal liability.

The Court of Appeal in Conn v Sunderland City Council [2007] gave further guidance when it underlined the requirement that the conduct complained about must be both oppressive and unacceptable if a claim under PHA was to succeed.

Allen v London Borough of Southwark

The Facts

The Claimant, a tenant of the London Borough of Southwark (LBS), appealed to the Court of Appeal against a decision in the County Court striking out his harassment claim, as having no reasonable prospect of success. Since 1996, LBS had issued 5 sets of proceedings against Mr Allen seeking possession on grounds of non-payment of rent. Problems had started when LBS requested that rent payments be made at a post office rather than the local housing office. Mr Allen argued that his tenancy agreement had never been amended to require him to pay elsewhere than the housing office and all the possession proceedings were essentially dismissed on that basis. The Claimant alleged that the last 3 sets of proceedings constituted harassment under PHA and claimed damages from LBS.

It fell to the Court of Appeal to determine whether or not a number of separate sets of proceedings founded on the same alleged cause of action constituted harassment under the PHA.

The Decision

The Court held that a reasonable person might consider that the conduct of LBS did amount to harassment, that the claim had been wrongly struck out and that it should proceed to trial.

It should be noted however that, in allowing the appeal, the Lord Justices merely gave the Claimant permission to present his evidence before a court at trial. They did not decide whether the Claimant had in fact been harassed and acknowledged “all the difficulties that Mr Allen (would)…undoubtedly face in the way of success at the trial.”

Lady Justice Arden in her judgement agreed with both the decisions in Majrowski and Conn and stated “…what is the boundary between what is unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable may well depend on the context in which that conduct occurs.” Further, “the allowing of the appeal in this case should not be seen as encouraging claims under…PHA.”

Ferguson v British Gas Trading Limited

The Facts

British Gas appealed the refusal to strike out a claim against it for damages for harassment under PHA. Ms Ferguson used to be a customer of British Gas, but when she switched to another supplier, she was sent several bills which she claimed were unjustified. She then received letters threatening to cut off her gas supply, to start legal proceedings and to report her to credit rating agencies and, despite her contacting British Gas on a number of occasions, the letters continued coming.

Amongst other things, British Gas argued that the conduct in question was not serious enough to amount to harassment as otherwise, merely annoying or aggravating matters of everyday life would be criminalised. It argued that Ms Ferguson knew the claims and threats were unjustified and that the correspondence was computer generated and so she should not have taken it as seriously as if it was from an individual.

The Decision

British Gas’ appeal failed. Following a consideration of relevant case law ( which is discussed above), it was acknowledged that a course of conduct must be grave before harassment was proved, but, the Court felt that at the very least, it was strongly arguable that British Gas’ conduct was capable of satisfying the gravity test.

Further, the argument that Ms Ferguson knew the threats were unjustified was absurd – the PHA was there to protect people against unjustified harassment.

Finally, whilst it was accepted that the correspondence was computer generated as it was read by a real person they were likely to suffer from real anxiety and distress if threatened in the way that Ms Ferguson was threatened.

Specifically, Lord Justice Jacob said, “I ask myself whether a jury or bench of magistrates could reasonably conclude that the persistent and continued conduct here pleaded was on the wrong side of the line, as amounting to “unacceptable and oppressive conduct’. I am bound to say that I think it could.”