Intentional Interferences with the Person

Question 1

Collins v Wilcock (1984)

Answer 1

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another’s freedom of movement from a particular place” (Goff LJ, at p. 377-8).

“The fundamental principle, plan and incontestable, is that every person’s body is inviolate…The effect is that everybody is protected not only against physical injury but against any form of physical molestation” (p. 378). In other words, any touching - regardless of consent - amounts to battery. However, in principle consent amounts to a defence against battery - and most of the ‘ordinary’ physical touching required in day-to-day life will not suffice. There is thus a development of a ‘broad principle’, subject to ‘general exceptions’ (p. 378).

Question 2

Wilson v Pringle (1986)

Answer 2

The act, not the injury, must be intentional to establish TAP; “it is the mere trespass by itself which is the offence” (p. 249). i.e. All that is required to be shown is deliberate conduct (there is no need to establish an intention to commit the tort).

It was believed that ‘hostility’ was required to establish TAP (battery), but this has now been overruled in F v West Berkshire (1990) as being difficult to reconcile with the broad principle that any touching amounts in principle to battery (Lord Goff at [73]).

Question 3

Letang v Cooper (1965)

Answer 3

This case concerns intention and committing battery. If the injury is inflicted unintentionally, but negligently, the action lies in negligence rather than trespass (Lord Denning).

Question 4

Livingstone v MOD (1984)

Answer 4

This case concerns intention and committing battery. A soldier deliberately fires A, but misses him and hits B instead. It was held that intent can be ‘transferred’ (Hutton J at p. 361).

Question 5

Bici v MOD (2004)

Answer 5

Livingstone endorsed. Recklessness is defined as the indifference as to the result of your actions.

In principle this would suffice as intention; but, it must be ‘subjective recklessness’ (appreciating risks of potential harm to C but being indifferent to it) (Elias J at [67]).

Question 6

Blake v Galloway (2004) [also seen in the Breach of Duty deck]

Answer 6

Participating in a game equates to implied consent for battery. The question of implied consent must be judged on the circumstances (Dyson LJ at [24]).

Question 7

Fagan v Metropolitan Police Commissioner (1969)

Answer 7

(Don’t mention any criminal cases unless the lecturers have mentioned them to you)

It was accepted that D did not mean to drive on to C’s foot, but D took time to move the car…

Intention thus not needed at the exact time of the force; can come later once you are informed - there was a ‘coincidence’ of intention.

Question 8

Scott v Sheperd (1773)

Answer 8

This case concerns the application of direct and immediate force.

A difficult case as D threw it in a crowd, where people instinctively redirected the squib until it injured C.

Court still maintain that the ‘mischief’ was originally intended, and a natural, instinctive reaction does not change that. “Whatever mischief therefore follows, he is the author of it” (De Grey CJ at p. 528).

Question 9

Tuberville v Savage (1669)

Answer 9

This case illustrates the necessity for immediacy in assault claims.

“If it were not assize time [i.e. the judges were in town], I would not take such language from you”

However, it was ‘assize time’, so there was no immediacy. Therefore, no assault.

Question 10

R v Ireland (1997)

Answer 10

This case establishes that in principle, words alone can constitute assault - and even silence (as in this case, silence over the phone implied that D knew C was at home; however, this invariably depends on the facts) (Lord Steyn at p. 162).

Question 11

R v Governor of Brockhill Prison, ex parte Evans (No. 2) (2001)

Answer 11

A prisoner held in prison 59 days longer than she should have been, based upon the governor’s miscalculation. She sued for false imprisonment.

Governor was held liable, as false imprisonment = a tort of strict liability; D does not have to act in bad faith or intend to imprison falsely (i.e. unlawfully). Lord Steyn writes that treating false imprisonment as a tort of strict liability “strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime” (p. 27).

Question 12

Prison Officers Association v Iqbal (2009)

Answer 12

(Concerning the intention of false imprisonment)

“I would hold that, if the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act (or omission…) regardless of that likely consequence, that will amount to false imprisonment, provided of course that the other requirements are satisfied” (Smith LJ at [73])

Moreover, Smith LJ writes that in except for exceptional circumstances, the tort of false imprisonment cannot be committed via an omission. In the Brockhill prison case, an exception was provided, as it concerned a right and corresponding duty to be released. Thus, liability for omissions can only arise out of an established right and duty [69]. In his dissent, Sullivan LJ believed that the right prisoners have to not be falsely imprisoned should have taken precedence over the right for prison officers to strike - as the former was of fundamental importance [103].

Question 13

Bird v Jones (1845)

Answer 13

(Defining imprisonment)

“Imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience t may bring on him” (Patteson J at p. 752).

Question 14

Murray v MOD (1988)

Answer 14

In obiter, Lord Griffiths writes that one can sue for false imprisonment even if one did not know at the time that one was falsely imprisoned; this reflects the supreme importance of the liberty of the individual. However, one can only expect to recover nominal damages.

Question 15

Hague v Deputy Governor of Parkhurst Prison (1992)

Answer 15

Lord Ackner at p. 166 writes that lawful imprisonments cannot be rendered unlawful simply via a change in detention conditions.

Question 16

Austin v Commissioner of Police of Metropolis (2009)

Answer 16

This case concerned Article 5(1) ECHR (individual liberty and security). During anti-capitalist demonstrations in London on May 1, 2001, the police cordoned in up to three thousand demonstrators in Oxford Circus for up to 7 hours. It was held that the police intended to maintain the cordon for as long as necessary to achieve their purposes, and thus did not constitute a violation of Article 5 (Lord Scott at [39]).

Question 17

Lumba v Secretary of State (2011)

Answer 17

The Supreme Court considered the legality of detaining foreign nationals who had completed prison sentences for criminal offences, pending their deportation. It was concluded that their detention was unlawful: the policy under which they had been detained had not been published and was inconsistent with the published policy. The tort of false imprisonment was satisfied: the appellants had been detained, and their detention had not rested on a lawful decision. The right to liberty is of “fundamental importance” (Lord Dyson at [53]). However, the appellants could have been detained lawfully for this period under the published policy, and, in consequence, were entitled to only nominal damages; they did not suffer any loss or damage as a consequence (Lord Dyson at [95]). A form of ‘causation test’ regarding false imprisonment was rejected: “[The law does not recognise] any defence of causation so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act…” (Lord Dyson at [53]).

All C has to prove is that he was directly/intentionally imprisoned by D; it then falls on the latter party to evidence lawful justifications (Lord Dyson at [65]).

Lord Phillips, Lord Brown and Lord Rodger dissented in part, contending that the tort of false imprisonment was not made out where it was shown that a reasonable decision-maker, applying a lawful policy, would have detained the appellants. There was a further 6:3 split on the awarding of (only) nominal damages (Lord Brown does not see the logic of only awarding nominal damages: [343-4]).

Question 18

Kambadzi v Secretary of State (2011)

Answer 18

A sequel case to Lumba. Lord Hope believes that nominal damages do “not affect the issue of principle”, whilst Lord Brown (again, in dissent) argues that this would simply “devalue the whole concept of false imprisonment” [108].

Question 19

Robinson v Balmain Ferry (1910)

Answer 19

This case deals with conditions and terms and false imprisonment.

Robinson (R) paid a penny to cross on a ferry, however, he narrowly missed the ferry and changed his mind about crossing. R attempted to leave through the gate he came through, however, it required another penny to be paid to leave. R refused to pay the penny because he had not crossed on the ferry. Balmain New Ferry Co. (D) forcibly prevented R from leaving until he paid the penny. R raised an action for false imprisonment.

R claimed that he was falsely imprisoned due to the forcible prevention of his leaving the ferry wharf without paying a penny to leave.

Held:
A person can be legitimately prevented from leaving if they had entered an earlier contracted permitting so. When R entered the ferry gate, he agreed to pay a penny on both entering and leaving the ferry. This bound him to a contract and D was entitled to impose a reasonable condition before allowing him to pass through their turnstile from a place to which he had gone of his own free will. This case narrows the law on false imprisonment, following the case of Bird v. Jones [1845] 7 QB 742 in which it was held that false imprisonment is constituted by total (and not partial) obstruction, however in the present case it is held that it even where a person is totally obstructed it will not constitute false imprisonment if there is a reasonable condition to passing.

Question 20

Herd v Weardale Steel Co. (1915)

Answer 20

This case concerned terms and conditions and false imprisonment.

Herd (H) was a miner in a coal mine. H attended work at 9.30 am, and in the ordinary course of work he would be entitled to be raised to the surface from the mine at the end of his shift at 4 pm. When H arrived at work in the mine, he wrongfully refused to be work and requested to be raised to the surface in the lift at 11 am. His employers, Weardale Steel, Coal and Coke Company, the owners of the colliery (D), refused to allow H to be lifted to the surface until 1.30 pm. H was thus detained in the mine until that time. H sued D for damages for false imprisonment.

H claimed that his prevention from using the lift until 1.30pm, which caused him to be imprisoned in the mine as it was the only means of exit, constituted false imprisonment.

Held:
There was no false imprisonment due to the operation in the present case of the common law doctrine of violenti non fit injuria, which means that a person cannot bring an action against another person for tort or delict if they had willingly placed themselves in a position where harm might result, knowing that some degree of harm might result. In this case, the imprisonment constituted the ‘harm.’ Following the case of Robinson v Balmain New Ferry Co. Ltd [1910] AC 295, H was only entitled to the use of the exit on the terms on which he had entered. H had breached his employment contract by refusing to do the work he was ordered to do. This breach of contract justified his detention in the mine until the lift could be used at 1.10 that day (Viscount Haldane LC at p. 72).

Question 21

Ashley v Chief Constable of Sussex (2008)

Answer 21

This case deals with self-defence. If D believes he is under a potentially lethal attack or that such an attack is imminent, he is justified in defending himself/killing his assailant (Lord Rodger at [51]).

The issue here was that the assailant acted in a mistaken self-belief that he was in imminent danger of being attacked. Does this belief also have to be honestly and reasonably held? (Lord Scott at [15]). The result is that the criminal and civil law employ different tests when it comes to self-defence: in tort, you require the belief to be both honestly and reasonably held. Lord Scott believed that it was not right if D’s unreasonable, mistaken belief would be able to set aside C’s right not to be subjugated to physical violence [18].

Two points were left open by the judges:

1) What happens where D’s reasonable belief is based upon third-party information rather than the victim’s actions?
2) Should self-defence be available to a claim for battery only where D was actually attacked or in imminent danger of an attack?

Question 22

Revill v Newbery (1996)

Answer 22

Self-defence must be proportionate; excessive force = actionable wrong (Millett LJ at p. 580).

Question 23

Chief Constable of Merseyside Police v McCarthy (2016)

Answer 23

(regarding excessive force and self-defence)

In the early hours of 29 September 2012, the claimant was involved in a violent incident in Liverpool. In the course of subduing him, a Merseyside officer kicked the claimant once, placed a knee in his back and Tasered him twice.

At the liability trial in Manchester County Court, the recorder held the first Taser application discharge was lawful and dismissed the claims based on the kick and knee in the back, but held that the second Taser discharge was unlawful, as was a 2½ minute delay in providing aftercare to the claimant.

The negligent delay was not challenged, but the chief constable appealed against the finding that the second Taser discharge was unlawful.

The CoA held:

• The recorder had set the bar too high in deciding the officer’s use of force was unreasonable.
• In holding the chief constable liable in trespass (battery) rather than negligence (not pleaded), the recorder was wrong in law.
• In finding that the whole of the 11 seconds of the second Taser discharge was unlawful, the recorder was again wrong in law.

Question 24

Chatterton v Gerson (1980)

Answer 24

Whether consent can be found depends on the circumstances of each case. Must be a ‘greater’ failure of communication between doctor and patient than that involved in a breach of duty (if the claim lies in negligence) to vitiate consent (Bristow J at p. 442-3).

In sum, Bristow J held that C’s consent was valid because she had consented to the broad nature of the procedure. A case in which physicians may be sued for battery is when the procedure consented to was completely different from the procedure carried out to the claimant, the example given by the court was a case when a child in Salford checked into the hospital for a tonsillectomy but was given a circumcision instead.

Question 25

St. George’s Healthcare NHS Trust v S (1998)

Answer 25

S, who was 36 weeks pregnant, was diagnosed with severe pre-eclampsia, a life-threatening condition of pregnancy characterized by high blood pressure, and with moderate depression. She was advised that her health and her life, and that of her baby, were in real danger and that she needed to be admitted immediately to the hospital for an induced delivery. S fully understood the potential risks but rejected the advice on the grounds that she wanted her baby to be born naturally.

On the application of C, a social worker approved under Canada’s Mental Health Act (“Act”), S was admitted to a mental hospital against her will for assessment under section 2 of the Act as it was feared that her mental state was compromising her ability to make decisions. S was immediately transferred again against her will to St. George’s Hospital, which then applied ex parte for a declaration dispensing with her consent to treatment. Inadvertently misled into thinking that S had been in labor for 24 hours, a High Court judge granted the declaration, and S’s baby was born by Cesarean section. S returned to the mental hospital, discharging herself two days later.

S appealed against the High Court judge’s order and sought judicial review of C’s decision to admit and detain her under the Act.

The Court held that S had the right to refuse medical treatment even if it would endanger the life of her or her fetus. The Court reasoned that an adult of sound mind is entitled to refuse medical treatment because each individual has the right to autonomy and self-determination. The Court state that while pregnancy increases the personal responsibilities of a woman, it does not diminish her entitlement to decide whether or not to undergo medical treatment. Nor is her right reduced or diminished merely because her decision to exercise it may appear morally repugnant (Judge LJ at p. 50).

The Court further held that the removal of S’s baby from within her body under physical compulsion constituted an infringement of her autonomy which was not justified by the perceived needs of the fetus. The Cesarean section performed on her, and accompanying medical procedures, also amounted to trespass.

Question 26

Criminal Law Act 1967

Answer 26

s. 3: Use of force in making arrest, etc. -
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

(referring to utilising lawful arrest/prevention of crime as a defence to TAP)

What are ‘reasonable circumstances’?

Question 27

Davidson v Chief Constable of North Wales (1993)

Answer 27

No liability even if withheld due to false information.

When you are merely passing on information, even if wrong, detention is not false (you are simply relaying information to an established authority) - this is different from being an active instigator of the action that follows (Lord Bingham at p. 602).

Question 28

Ali v Heart of England NHS Foundation Trust and G4S (2018)

Answer 28

Davidson is enforced in this case here. No false imprisonment despite ‘misunderstanding’.

We don’t want tort to hinder an incentive to report to police.

Different from deliberately tricking the police into imprisoning someone.
[27]; [36]

Question 29

Albert v Lavin (1982)

Answer 29

‘The most British case ever’ - concerning the disruption of a bus queue.

Every citizen has the right to take reasonable steps to prevent a breach of the peace - this includes detaining someone against their will. So not just the police! (Lord Diplock at p. 565 (obiter))

Question 30

Prison Act 1952

Answer 30

Concerning interference based upon the public interest

s. 12: Place of confinement of prisoners -
(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.

Question 31

Re F (Mental patient sterilisation) (1990)

Answer 31

F was a 36-year-old woman. She had a serious mental disability caused by an infection when she was a baby. She had voluntarily been in a mental hospital since the age of 14. She had the verbal capacity of a child of two and the mental capacity of a child of 4. She developed a sexual relationship with a fellow patient. Her mother and medical staff at the hospital were concerned that she would not cope with pregnancy and childbirth and would not be able to raise a child herself. Other methods of contraceptives were not practical for her. They sought a declaration that it would be lawful for her to be sterilised. F was incapable of giving valid consent since she did not appreciate the implications of the operation.

Held: The declaration was granted. It would be lawful for the doctors to operate without her consent. Lord Bridge writes at p. 52: “It seems to me to be axiomatic that treatment which is necessary to preserve the life, health or well being of the patient may lawfully be given without consent.”

The defence of necessity only occurs in very limited circumstances.

Question 32

Mental Capacity Act 2005

Answer 32

s. 1: The principles -
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. [the best interests test - see s.4]
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

s. 4: Best Interests -
(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—
(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(3)-(11): more detailed provisions regarding best interests.

(in reference to the defence of paternalistic interference)

Question 33

ZH v Secretary of State (2011)

Answer 33

Illustration of inability to consent

‘reasonable, practicable, appropriate’ diffused within the statutory defence of paternalistic interference; also depends upon the circumstances of the case. The MCA does not impose impossible demands (Lord Dyson at [40]; [49]).

Question 34

Wilkinson v Downton (1897)

Answer 34

‘A famous English tort law decision in which the Common Law first recognised the tort of intentional infliction of mental shock.’

D played a prank on C; said that the husband was severely injured. C distressed and fell ill.

Liability despite no application of force: D has “wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria in law is malicious, although no malicious purpose to cause the harm which was caused or any motive of spite is imputed to the defendant” (Wright J at p. 58-9).

Question 35

Wong v Parkside Health NHS Trust (2001)

Answer 35

Workplace bullying case. Held that there is no common law tort of harassment (albeit you now have the Protection from Harassment Act).

Question 36

Rhodes v OPO (2015)

Answer 36

Current legal authority on Wilkinson v Downton.

Injunction sought to stop publication of a book as it may affect son.

Lady Hale and Lord Toulson write that the speech has to be deceptive, threatening, or abusive to constitute liability in tort for the wilful infringement of another’s right to personal safety. Moreover, the “right to report the truth is justification in itself…there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention” [77].

They provide further clarification on the elements of the offence at [83]; [87] - Intention to cause severe distress ‘enough’ (even if actual harm is far greater). Recklessness is not enough in establishing the mental element.

“In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant” [89].

Question 37

ABC v West Health 2000 Ltd. (2015)

Answer 37

Could grooming amount to tort via Wilkinson v Downton?

Yep! If the consequences are so obvious, then it will be held that D knew of it (Sir Robert Nelson at [89], mentioning Rhodes).

Question 38

Protection from Harassment Act 1997

Answer 38

s. 1: Prohibition of Harassment -
(1) 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.

(1A) A person must not pursue a course of conduct —
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii )to do something that he is not under any obligation to do.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

s. 3: Civil Remedy -
(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

s. 7: Interpretation (as amended) -
(3) A “course of conduct” must involve—
(a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or
(b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons.

(4) “Conduct” includes speech.
(5) References to a person, in the context of the harassment of a person, are references to a person who is an individual.

N.B.: The Court may also grant ‘an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment.’

Question 39

Conn v Sunderland CC (2008)

Answer 39

What conduct ‘crosses the line’? This depends on the context in which the conduct occurs. Moreover, it must be sufficiently serious as to justify sanctions of criminal law (Gage LJ at [12]).

Question 40

Veakins v Kier Islington Ltd. (2009)

Answer 40

No need to show malice when establishing harassment, but malice makes the ‘oppressive and unacceptable’ test easier to achieve (Maurice Kay LJ at [16] (obiter)).

Question 41

Ferguson v British Gas Trading Ltd. (2009)

Answer 41

The claimant had been a customer of the defendant but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed against a refusal to strike out the claim of harassment.

Held: The appeal failed. The court considered her claim of harassment, and what level of seriousness was sufficient to come within the Act.
Jacob LJ said ‘British Gas says it has done nothing wrong; that it is perfectly all right for it to treat consumers in this way, at least if it is all just done by computer. I accept that the course of conduct must be grave before the offence or tort of harassment is proved … It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognise, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene … I am quite unable to conclude that the impugned conduct is incapable of satisfying the test. On the contrary I think, at the very least, that it is strongly arguable that it does. 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 ‘oppressive and unacceptable conduct’. I am bound to say that I think they could.’

British Gas had “sought to downgrade it by saying that Ms Ferguson knew the claims and threats were unjustified. That is absurd: a victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all. Mr Porter also made the point that the correspondence was computer generated and so, for some reason which I do not really follow, Ms Ferguson should not have taken it as seriously as if it had come from an individual. But real people are responsible for programming and entering material into the computer. It is British Gas’s system which, at the very least, allowed the impugned conduct to happen.”

“Moreover the threats and demands were to be read by a real person, not by a computer. A real person is likely to suffer real anxiety and distress if threatened in the way which Ms Ferguson was. And a real person is unlikely to take comfort from knowing that the claims and threats are unjustified or that they were sent by a computer system: that will not necessarily allay the fear that the threats will not be carried out” [20].

A further defence argued by BG was that as a large corporation, it cannot be legally responsible for mistakes made either by its computerised debt recovery system or by the personnel responsible for its operation; however, this was rejected (Sedley LJ at [51]). Companies can, therefore, be defendants under the Act (but not claimants).

Question 42

Worthington v Metropolitan Housing Trust Ltd. (2018)

Answer 42

Another case which shows how the PHA can be utilised to monitor unacceptable behaviour by companies.

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.

[after considerable pressure…]

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 CoA 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 (Kitchin LJ at [80]). 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’.

Question 43

Iqbal v Dean Manson Solicitors (2011)

Answer 43

The claimant sought protection under the Act from his former employers’ behaviour in making repeated allegations against him. He appealed against the striking out of his claim.

Held that appeal succeeded. None of the letters themselves were (individually) sufficiently serious, but once added up can amount to harassment –> one has to judge ‘overall’ in terms of course of conduct, both as a matter of statute and common sense (Rix LJ at [45]).

Question 44

Hayes v Willoughby (2013)

Answer 44

The Supreme Court dismissed Mr Willoughby’s appeal by a majority of four to one.

In the context of s.1(3)(a) of the Protection from Harassment Act 1997, “purpose” was a subjective state of mind. There was no distinction between the purpose of the conduct and the purpose of the alleged harasser. The issue was the standard by which the purpose was to be assessed. A test of reasonableness was deliberately not included in s.1(3)(a) as it was in other sections of the Act, but a wholly subjective test was not appropriate either. The necessary control mechanism was held to be the concept of rationality.

A test of rationality applied a minimum objective standard to the relevant person’s mental processes. It imported a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, of capriciousness, or of reasoning so outrageous in its defiance of logic as to be perverse (Lord Sumption at [12], [14]).

Applied to the facts, the appellant’s conduct was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. The judge’s findings of primary fact meant that the point had been reached where Mr Willoughby’s vendetta against Mr Hayes was more than objectively unreasonable. It was irrational so that he was unable to rely on s.1(3)(a) of the Protection from Harassment Act 1997 as a defence.
It was unnecessary to decide whether the purpose specified in s.1(3)(a) had to be the sole purpose of the alleged harasser. However, a person’s purposes were almost always to some extent mixed and the ordinary principle was that the relevant purpose had to be the dominant one.

The dissenting judgment of Lord Reed agreed that reasonableness is not required under s.1(3)(a), but rejected the idea that Parliament intended to impose a rationality requirement and suggested that a statute should not be construed as extending criminal liability beyond the limits provided for by Parliament in enacting it (would be “slow to infer that criminal liability was intended to turn upon” whether the act was unreasonable or irrational) [26]-[28].

Question 45

Jones v Ruth

Answer 45

Regarding s.3 (Civil Remedy) of the PHA.

The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though the judge had found harassment, he had made no award saying that the damage was not reasonably foreseeable.

Held: The claimant’s appeal succeeded; it was held that harm suffered need not be foreseeable (Patten LJ at [32]).
The statute says anxiety can be a cause of action in tort law (otherwise wouldn’t normally be) (s.3(2)).