Case No: B3/2006/2159
Neutral Citation Number: [2007] EWCA Civ 1492
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(RECORDER KEARL QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 7th November 2007

Before:

LORD JUSTICE WARD
LORD JUSTICE BUXTON
and
LORD JUSTICE GAGE
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Between:

	CONN	Respondent/Claimant
	
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THE COUNCIL OF THE CITY OF SUNDERLAND	
Appellant/
Defendant	

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Mr M Porter QC (instructed by Messrs Crutes LLP) appeared on behalf of the Appellant.

Mr C Makey (instructed by Messrs Thompsons) appeared on behalf of the Respondent.
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Judgment
Lord Justice Gage:

1.	This is an appeal by a defendant from a decision by Mr Recorder Kearl QC given on the 18 September 2006 at the Newcastle upon Tyne County Court.  By his decision the recorder gave judgment for the claimant for damages for £2,000 and £100 interest in respect of a claim by the claimant for damages for harassment pursuant to section 3 of the Protection from Harassment Act 1997, which I will refer to hereafter as the 1997 Act.

2.	The recorder dismissed the claimant’s claim for damages and negligence on the basis that any breach of duty must not be causative of the psychiatric injuries complained of by the claimant.  He ordered the defendant to pay 75 percent of the claimant’s costs.  This order is the subject of the appeal to this court.

3.	The background facts are as follows.  The claimant was born on 1 May 1947.  Before the incident, the subject of the claim, he had worked for the defendant as a paver since 1962.  At the time of the events which gave rise to this claim, the claimant’s site foreman was David Dryden.  Mr Dryden and the claimant had known each other for many years.  They had lived in the same locality all their lives.  The claimant’s case was that on five occasions, starting with an incident on 25 July 2000 and ending with an incident on 17 November 2000, Mr Dryden had abused, threatened and intimidated him in such a way as to amount to harassment under section 1 of the 1997 Act.  From that date, he was off work until his employment was terminated in June 2005.

4.	The recorder found two out of the five incidents proved.  He rejected the claimant’s case in respect of the three other incidents.  He rejected his claim in negligence.  However, he found that two incidents, which were proved, amounted to harassment.  Of them, he said:

“The language and actions used went well beyond those which would normally be regarded as acceptable, even in that environment.  They were potentially intimidating, and on the 2nd occasion, very personal toward Mr Conn.  I find in the circumstances that I have set out, that the kind of damage that did result in this case, namely intimidation and a psychiatric episode was of the kind that was reasonably foreseeable bearing in mind what the employer knew of the Claimant, since, apart from anything else, this type of behaviour, involving direct verbal abuse coupled by physical threats was the sort of behaviour that might cause psychiatric damage to any worker, whether manual or not.  I find that this type of behaviour went well beyond the normal pressures of the job and well beyond what could and should be expected from a manager.”

5.	The defendant’s case in this appeal is that neither of the two incidents was of sufficient gravity to constitute harassment within the meaning of the 1997 Act.  The recorder’s findings of fact in relation to the two incidents are not challenged.  I shall describe them by reference to the recorder’s judgment.  The first incident found proved was the third in a sequence of five.  The recorder said:

“This is said to have taken place in late October 2000.  It is alleged that Mr Dryden asked Mr Conn, Paul Harrison and David Welsh to name those people who had been leaving site early.  This has been termed, ‘shopping his colleagues’.  Mr Conn told me that when he refused, Mr Dryden became angry and threatened to punch out the windows of the cabin and have them up before the personnel dept.  Mr Conn was supported in this assertion by Paul Harrison and David Welsh, both of whom gave evidence to a like effect.”

The recorder’s finding in respect of this incident is expressed as follows:

“Therefore I find on balance that Mr Dryden did demand to know who had left work early.  That was a demand made to Mr Conn, but also to Paul Harrison and David Welsh.  Neither of them were particularly bothered about the threat to punch through the windows.  Mr Welsh said that he was not intimidated, nor indeed did it make him feel uncomfortable.  Mr Harrison said that he had not been afraid of Mr Dryden and had not been affected by his conduct upon that occasion.”

6.	The second incident which the recorder found proved was the fifth and final alleged incident.  It occurred, as I have said, on 17 November 2000.  The recorder summarized this incident and his findings in respect of it as follows:

“It was Mr Conn’s account that he had gone to work that morning and Mr Dryden had later approached him asking him why he was giving him the ‘silent treatment’.  When he replied that he was only prepared to talk to Mr Dryden about work matters Mr Conn told me that Mr Dryden had lost his temper and said that he would give Mr Conn a good hiding and didn’t care if he lost his job over it.  Mr Conn said that Mr Dryden was so angry that he was shaking with rage and that he, Mr Conn felt so scared and threatened that he asked Mr Harrison to come over to witness what was going on.  Mr Harrison did come across and said that he heard Mr Dryden say to Mr Conn that he knew where he, Mr Conn lived.  Mr Harrison and Mr Conn then told me that Mr Dryden had told Mr Harrison to ‘fuck off’ in an aggressive manner.”

7.	The recorder accepted that on this occasion Mr Dryden had lost his temper.  He found on a balance of probabilities that Mr Dryden had acted in an aggressive manner towards the claimant and that he threatened him with violence.  He summarized the two incidents in the following terms:

“In summary therefore, I make the findings that on one occasion Mr Dryden demanded to know of Mr Conn and others, who was leaving work early, and when told that they wouldn’t say, he threatened to smash the cabin windows with his fist, and have them up before the personnel dept if they didn’t tell him who was leaving the site early.  I also find that on another occasion Mr Dryden became angry and aggressive with Mr Conn, specifically when Mr Conn refused to talk to him, and that Mr Dryden threatened Mr Conn with violence, told him that the 2 of them were finished and that he, Mr Conn, was ‘a little shit’.”

8.	The judgment continued with the first passage to which I have referred above.

9.	It is necessary first to turn to the statutory provisions in the 1979 Act.  Section 1, under the heading “Prohibition of Harassment”, reads as follows:
“1(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.” 

Subsection 1A is not relevant.  Subsection 2 reads:

“(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.”

Section 2 provides that a person who pursues a course of conduct in breach of Section 1(1) is guilty of an offence.  Section 3 provides that: 

“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.”  

Section 3(2) reads:

“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.”

Finally for these purposes, I must refer to section 7 of the 1997 Act which is an interpretation section.  For the material parts it reads:

“(2) References to harassing a person include alarming the person or causing the person distress.

(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…
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…”

Subsection B is not relevant nor is Subsection 3A. Subsection 4 reads: 

“Conduct includes speech.”

10.	Counsel have referred the court to the decision of the House of Lords in Majrowski v Guy’s and St Thomas’s NHS Trust  [2006] UKHL 34.  That case involved allegations of harassment in a hospital setting.  The issue on appeal was whether the defendant hospital trust could be vicariously liable for alleged harassment by an employee.  The claim was struck out of the county court but reinstated on appeal to the Court of Appeal.  The House of Lords upheld the decision of the Court of Appeal.  Its relevance to this appeal is in the observations in the speech of Lord Nicholls of Birkenhead as to what sort of conduct might constitute harassment.  In discussing the fears that employers had that they might be subjected to a multiplicity of unfounded speculative claims made for the first time years after the alleged harassment, Lord Nicholls made some remarks about what sort of conduct might constitute harassment in a workplace setting.  Having referred to the necessity for vicarious liability to involve a close connection, he went on:

“Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people.  Courts are well able to recognize 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.”

11.	To this observation I should add a few of my own.  As Baroness Hale put it in her speech, harassment is left deliberately wide.  Section 7, to which I have referred, points to elements which are included in harassment, namely alarming or causing distress.  Speech is also included as conduct which is capable of constituting harassment.  The definition of “course of conduct” means that there must be at least two such incidents of harassment to satisfy the requirements of a course of conduct.  It is also in my judgment important to note that a civil claim is only available as a remedy for conduct which amounts to a breach of section 1, and so by section 2 constitutes a criminal offence.  The mental element in the offence is conduct which the alleged offender knows, or ought to know, judging by the standards of what the reasonable person would think, amounts to harassment of another.

12.	It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs.  What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa.  In my judgment the touchstone for recognizing what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law. 

13.	Turning to the effect of this case, Mr Porter QC for the defendant submits that Mr Dryden’s conduct in neither incident crossed the line between the regrettable and unacceptable into the criminal field.  He submits that neither of the two incidents amounted to more than a forcibly expressed request for the claimant to tell Mr Dryden who was leaving work earlier.  The threat of physical action involved a window, not the claimant.  He relies on the fact that neither of the claimant’s two work colleagues who were present were particularly troubled by the incident.  He submitted that this conduct did not amount to harassment nor of Mr Dryden to know that he was guilty of harassing.  Similar submissions are made in respect of the second incident.  It is accepted that Mr Dryden lost his temper, swore and threatened the claimant, but in the context of the workplace it is submitted that this did not constitute harassment.  For obvious reasons, Mr Porter concentrated his submissions on the first incident.  

14.	Mr Makey for the claimant submits that essentially the assumed case was one of fact for the recorder to decide.  He submits that the recorder was in the best possible position to decide not only the facts but whether the content passed the boundary into criminal harassment.  He submits that the recorder correctly directed himself on the applicable statutory provisions and that his findings are unassailable.  He had the parties (inaudible) before him.  He found that the actions of Mr Dryden went beyond unreasonable conduct and trespassed into what was oppressive.  In the first incident, he submits that it is reasonable for Mr Conn to perceive that he was under the threat personally rather than it being a threat to property.

15.	The first thing to note in my judgment is that although the recorder referred to Majrowski, it was not in the context of the guidance given by Lord Nicholls;  it was in a reference to the fact that the defendants could be vicariously liable for the conduct of Mr Dryden.  At no stage did the recorder specifically refer to Lord Nicholls’ guide on the threshold test or to the question of whether or not the conduct could amount to criminal harassment.  In my judgment the recorder was wrong to hold on the facts found by him that Mr Dryden’s conduct amounted to harassment.  Although the matter is not free from doubt, for my part I am prepared to accept for the purposes of this appeal that in the final incident, the second of the two found by the recorder to be proved, Mr Dryden’s conduct did cross the line to oppressive and unacceptable conduct; it clearly caused the claimant a great deal of distress.  On the recorder’s findings, Mr Dryden lost his temper and uttered an unpleasant threat.  However, so far as the first incident is concerned, in my judgment, it did not cross the boundary into conduct which can be said to be unlawful.  The incident was no doubt an unpleasant one so far as the claimant was concerned.  However, no physical threat was made; it (was) solely (referred) to property.  There is in my judgment force in the submission made by Mr Porter that the remarks were addressed to three people and not just to Mr Conn; he was not targeted in respect of that remark.  Although Mr Conn became agitated, as the recorder found, he found that neither of his two other work colleagues who were present were troubled by it.  The recorder also in his judgment stated that the claimant himself told him that he did not feel threatened by Mr Dryden until the last incident.  In my judgment, this is the sort of bad-tempered conduct which, although unpleasant, comes well below the line of that which justifies a criminal sanction.  It follows that in my judgment the recorder was wrong to find that there were two incidents sufficient to amount to a course of conduct.  In the circumstances, I would allow the appeal in respect of his finding that the defendants were responsible for and vicariously liable for Mr Dryden’s conduct in harassment.  I would allow the appeal and set aside the judgment.  So far as the issues of costs are concerned, it follows that this does not arise; we have not heard argument, but I am bound to say my preliminary view is that that also might be capable of a successful appeal.  For those reasons and to that extent, for my part I would allow this appeal.

Lord Justice Buxton:

16.	I agree.  When the recorder came, right at the end of his judgment, to deal with the claim in respect of protection from harassment, which of course had been added to the claim as very much a rider to the substantial claim for criminal negligence, he said this:

“Applying the findings that I have made, the defendants are responsible for 2 instances [and therefore a course of conduct] of harassment.  The actions of Mr Dryden were such that he either knew or ought to have known that they amounted to harassment of another.  In my judgment the actions of Mr Dryden on those 2 occasions were such that any reasonable person would have realised that what he was doing amounted to harassment of Mr Conn.  The language and actions used were calculated to cause alarm and distress to those who witnessed them, in particular to Mr Conn, who, unknown to Mr Dryden was already on the verge of a mental breakdown.”

17.	We were told by Mr Porter that, contrary to one’s first impression of his document, this was not a note taken by counsel of a more expansive judgment on the part of the recorder.  The passage I quoted is in fact from the recorder’s own written judgment that he handed down in due course without further elaboration.  We therefore are entitled to view it as a complete statement on the part of the recorder of his reasoning on this part of the case.  The last sentence, referring as relevant to the particular fragility of Mr Conn is, I have to say, plainly a mistake.  It cannot affect what the alleged harasser ought to know of the implications of his conduct: that the person with whom he is dealing is, unknown to him, particularly fragile.  That might well be a relevant consideration when considering liability and negligence, but not in a circumstance such as the present.  

18.	More fundamentally, however, as my Lord has pointed out, there is no indication at this part of the judgment, and no (I have to say) reason to infer from the terms of the recorder’s decision, that he had in mind the guidance given by Lord Nicholls in Majrowski as to the type of conduct that crosses the line into harassment.  Crucial to that is Lord Nicholls’ determination my Lord has referred to that the conduct concerned must be of an order that would sustain criminal liability, and not merely civil liability on some other register.  Had the recorder had that requirement in mind when he came to this part of his judgment, it seems to me I have to say completely impossible that he would have concluded that the third incident, as it has been called, the first one relied on, could amount to harassment.  But what occurred is a very long way away from anything that, in a sensible criminal regime, would lead to a prosecution, much less to a conviction.  That is underlined by the fact found by the recorder that the language and actions that were used were used to three men, one of whom was upset by them (Mr Conn), two of them were not (Messrs Harrison and Walsh).  Now, against that background I do not start to see how it could be said that Mr Dryden ought to have known that what he was doing amounted to a criminal course of conduct.  If it was not criminal toward Messrs Harrison and Walsh, and plainly a criminal prosecution in respect of them would have been bound to fail, I do not see how it could be criminal in respect of Mr Conn.  I therefore have no doubt that, because the recorder did not correctly direct himself as to the test of this part of his judgment, this court has to substitute its own view.  My view of the third incident is, if I may so so with respect, entirely that of my Lord; and it is therefore not necessary to refer to the fifth incident at all, though in so doing I must not be taken as accepting that that would have been a possibility as part of a course of conduct.  I therefore, like my Lord, would allow this appeal.  It is not necessary to say anything about the costs of the appeal, though I with respect do not dissent from the last sentence of my Lord’s judgment.

Lord Justice Ward:

19.	I agree with both judgments given by my Lords.  I am tempted only to add: what on earth is the world coming to if conduct of the kind that occurred in the third incident can be thought to be an act of harassment, potentially liable to giving rise to criminal proceedings punishable with imprisonment for a term not exceeding six months, and to a claim for damages for anxiety and financial loss?  It falls so far short below the threshold that we are in my judgment fully entitled to interfere with the judgment of the recorder, even though he had the benefit of seeing the witnesses and judging the facts as they appeared before him.  The conduct here not come close to harassment and I would therefore allow the appeal, set aside his order, and enter judgment: dismiss the claim of the claimant for damages in its entirely.

Order: Appeal allowed.