Unjustified threats of legal action can amount to harassment

The facts: On 17 May 2018, the Court of Appeal, in the case of Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125, upheld an ex-tempore judgment of His Honour Judge Owen QC delivered on 10 June 2016, in which he found that the Defendant housing association, Metropolitan Housing Trust Limited, had unlawfully harassed two of its tenants.

Mr Worthington and Ms Parkin, the Claimants in the action, had been assured tenants of the Defendant since 1997 and 2000 respectively.  For some time, both had been worried about antisocial behaviour in their neighbourhood.   With the consent of the Defendant, Ms Parkin installed CCTV equipment at her home for the purposes of her own security.   Mr Worthington established a Town Residents Group, of which he was the self-appointed chair.  He created a website for this group on which he published evidence of what he considered to be unacceptable behaviour in the neighbourhood.

Neighbours of the Claimants were concerned by their activities.  It was alleged, for instance, that Ms Parkin’s CCTV recordings infringed the privacy rights of other neighbours and that both she and Mr Worthington had taken inappropriate photos of other residents, including children.  Neighbours submitted complaints to the Defendant raising their concerns.

In April and May 2007, senior employees of the Defendant met with the Claimants to discuss the complaints they had received.  At these meetings, the Claimants explained their concerns about antisocial behaviour and outlined the steps they were taking to record it.

In September 2007, Mr Kotecha, the Defendant’s estate manager, visited Ms Parkin at her home and advised her to remove her CCTV equipment.  Ms Parkin declined to do so, explaining that she was concerned for her safety.

Over the following months, Mr Kotecha applied considerable pressure on Ms Parkin to remove her CCTV equipment.  This included asking Police officers to visit her home and, at the beginning of October 2007, providing the Defendant with a petition objecting to the Claimants’ activities which was apparently signed by 80 individuals.  Mr Kotecha also provided seven statements purportedly prepared by residents, which contained complaints that both Claimants had installed CCTV cameras in breach of their privacy rights.

Mr Kotecha also instructed the Defendant’s solicitors to send Ms Parkin a letter on 21 September 2007 and Mr Worthington a letter three days letter.  The letter to Ms Parkin alleged that her use of the CCTV system had infringed the privacy rights of her neighbours and accused Mr Worthington of using CCTV at his property.  Both of these allegations were false.  As for Mr Worthington, he had never installed CCTV cameras at his property.  While Ms Parkin did have a CCTV system, it had, as His Honour Judge Owen QC found, only been used for the purposes of her security and not to invade the privacy of her neighbours.

On 11 October 2007, the Defendant wrote to both Claimants stating that it intended to expel them from their homes as a result of their misuse of the CCTV equipment.  Both of the letters repeated the material inaccuracies contained in the solicitors’ letters of 21 and 24 September 2007, as well as being inaccurate in other serious respects.

On 5 November 2007, solicitors for the Defendant sent letters to the Claimants threatening legal proceedings unless the CCTV cameras were removed forthwith.   The Claimants responded, through Chesterfield Law Centre, to deny all the allegations and implications of wrongdoing, including the allegation that children had been photographed or filmed inappropriately.

On 10 January 2008, solicitors for the Defendant informed Ms Parkin that an application for an injunction to enforce the terms of the tenancy agreement would be made unless she removed the CCTV equipment with seven days.  Despite the fact that Ms Parkin did not accede to this request, the foreshadowed application was not made, although Ms Parkin was not informed of this until 16 June 2008.

Similarly, on 11 January 2008, an employee of the Defendant wrongly informed Mr Worthington that legal proceedings, which included seeking an injunction, were in progress.  No such proceedings were live at that stage nor indeed were they issued subsequently.

The law

Section 1 of the Protection from Harassment Act 1997 (‘PHA’) stipulates that:-

‘A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.’

Section 7(2) states that harassment includes ‘alarming the person or causing the person distress’ and a ‘course of conduct’ is described in section 7(3) as necessarily involving ‘in relation to a single person ... conduct on at least two occasions in relation to that person ‘.

Harassment can cover a wide range of conduct which causes alarm and distress. In the Court of Appeal case of Iqbal v Dean Manson [2011] EWCA Civ 123, it was held that sending letters can form part of a course of conduct amounting to harassment:-

‘Take the typical case of stalking, or of malicious phone calls. When a defendant, D, walks past a claimant C's door, or calls C's telephone but puts the phone down without speaking, the single act by itself is neutral, or may be. But if that act is repeated on a number of occasions, the course of conduct may well amount to harassment. That conclusion can only be arrived at by looking at the individual acts complained of as a whole. The course of conduct cannot be reduced to or deconstructed into the individual acts, taken solely one by one. So it is with a course of communications such as letters. A first letter, by itself, may appear innocent and may even cause no alarm, or at most a slight unease. However, in the light of subsequent letters, that first letter may be seen as part of a campaign of harassment.’

In Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, Lord Nicholls referred to the threshold required for establishing harassment:-

‘Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable.  To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 [of the PHA].’

Application of law to facts

In the instant case, the Court of Appeal agreed with His Honour Judge Owen QC that the Defendant’s conduct amounted to harassment.  The main reason for this was that the Defendant issued serious threats without taking the most basic steps to ensure that they had a proper foundation.  Many of the false allegations levelled at the Claimants in correspondence were plainly verifiable (e.g. that Mr Worthington had never installed CCTV) but the Defendant either refused to investigate or failed to take properly into consideration the Claimants’ explanations.  The consequence of this was that the Claimants were subjected, by the Defendant and its solicitors, to improper threats of possession proceedings and loss of their homes.  As the Court of Appeal acknowledged, any threat of eviction or possession proceedings was likely to cause the Claimants, who rented their homes from the Defendant, ‘particular anxiety’.

Comment

This case serves as a useful reminder that conduct which might, at first blush, appear reasonable (e.g. threatening legal proceedings), can in fact amount to harassment.  In each case, whether the conduct complained of crosses the boundary from the regrettable to the unacceptable will turn on the particular facts.  Here, the claim for harassment was made out because the threats were entirely unjustified.

The second point, for practitioners in this area, is to question your client’s instructions.  While there is no suggestion in this case that the Defendant’s solicitors were not following instructions, it seems likely that proper examination of the evidence would have meant that falsehoods, such as the baseless claim that Mr Worthington had installed CCTV, were not repeated in the solicitors’ letters.  As recently stated by the barrister, Gordon Gexall, in a recent blog: ‘a client who has a lawyer who automatically believes everything they say has a fool for a lawyer.’

Please click to find out how Brett Wilson LLP media law solicitors can help you if you have been harassed.