Legal profession - Course of conduct - Defence statements - Harassment

The appellant (X) appealed against a decision upholding the striking out of his claim of harassment made against the respondent firm of solicitors (D).

X had previously worked for D as an assistant solicitor.

During that period D had had clients whose legal fees had been guaranteed by an individual (B). X ceased his employment with D and later ran his own firm.

D issued proceedings against B under the guarantee and B instructed X to act for him in those proceedings.

Within the following month D wrote three letters to X alleging a conflict of interests and acts of impropriety by X and questioning his motivation for acting for B.

The third letter made allegations of illegality and impropriety by an individual with whom X had previously run a partnership.

X made a claim under the Protection from Harassment Act 1997.

D served a defence in which they made further allegations against X including of bigamy and forging a statement of truth. X’s claim was later struck out.

On appeal the judge found that: the third letter was arguably capable of being described as harassing but that it was only one instance and so did not form a course of conduct; the defence did not amount to an occasion of harassment, partly because the cause of action had to be established as at the date of the claim form and what was said in the defence occurred thereafter; a partnership could not be a ‘person’ within the meaning of the act.

The instant court was required to determine: (i) the difference between the third letter and the first two letters; (ii) whether, even if the first two letters by themselves were not capable of constituting harassment, they could amount, together with the third letter, to a ‘course of conduct’ within the meaning of the act;

(iii) whether the defence could be relied upon as evidencing a course of conduct and whether it mattered that the defence post-dated the claim form; (iv) whether a partnership could be a defendant to a civil action under section 3 of the act.

Held: (1) The three letters, particularly when viewed in light of each other, and especially the last two, arguably amounted to a deliberate attack on X’s professional and personal integrity, in an attempt to pressurise him, by his exposure to his client, the court or both, into declining to act for B or else advising B to meet D’s demands.

Each letter, when considered side by side, arguably evidenced a campaign of harassment against X.

They were arguably capable of causing alarm or distress and were arguably unreasonable, or genuinely offensive and unacceptable.

Where a professional man’s integrity was deliberately and wrongly attacked, a potential claim lay under the act, Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [2002] EMLR 4 and Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, (2007) 1 AC 224 considered (see paragraphs 41-42 of judgment).

(2) The act was concerned with courses of conduct that amounted to harassment, rather than with individual instances of harassment.

The course of conduct had to amount to harassment, both objectively and in terms of the required mens rea.

The judge therefore erred in failing to ask himself, in light of his finding as to the third letter, whether the three letters as a whole could amount to a relevant course of conduct, Kelly v DPP [2002] EWHC 1428 (Admin), [2002] 166 JP 621 considered (paragraphs 45, 51).

(3) X could refer to the defence as throwing evidential light on the proper understanding, interpretation and assessment of the letters.

If it was doubtful that they arguably amounted to a course of conduct amounting to harassment the question could be looked at with the evidential assistance of the defence.

For those purposes it did not matter that the defence post-dated the claim form.

Further, in as much as X sought to rely on the defence as a second occasion making up a course of conduct, the judge erred in excluding it from consideration because it occurred after the claim form.

That was a rule of practice, rather than a rule of law, and it could be departed from when the justice of the case required.

Under the act a victim could seek an injunction before a course of conduct had been established if they could show a suitable case of fear of such a course of conduct.

That was part of what X sought to do.

In those circumstances it was profitless and harsh to force a claimant back to the issue of a further claim form where a defendant provided a further occasion making up a course of conduct amounting to harassment in the course of proceedings (paragraphs 52-53).

(4) There was no reason why ‘person’ in section 3 should not be given its natural meaning, Majrowski considered.

Therefore, a partnership could be a defendant to a civil action under that section (paragraph 63).

Appeal allowed.

In person for the appellant; Christopher Brown (instructed by Thompson & Co) for the respondent.