COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
Mr JUSTICE TEARE
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RICHARDS
|- and -
|DEAN MANSON SOLICITORS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Christopher Brown (instructed by Thompson & Co Solicitors) for the Respondents
Hearing dates : Wednesday 24th November 2010
Crown Copyright ©
Lord Justice Rix :
The three letters
"As you are acting for the Defendant we would like to raise a few questions in relation to your integrity as a solicitor acting in this matter, in particular whether you are satisfied before your client that you can act independently and impartially for your client and in his best interests.
We understand that you are a sole practitioner and therefore you are dealing with this matter in person.
Will your client be satisfied if he comes to know that you were in the past supervised by the Partners of our firm? Thanks to their blessing you were able to become who you are now. They made several recommendations for you. You were also employed by our firm in the past. Was your departure from the firm amicable or have you any issues in relation to your employment and departure still outstanding?
This is an open letter, which will be presented in court if needed."
"In essence we understand that the defendants Mr and Mrs Naseem Ahmad Tahir were personal contacts of yours and you have also worked on the file during your employment at Dean Manson Solicitors. We therefore believe that this raises serious conflict and conduct issues on your part since your departure from Dean Manson Solicitors was not pleasant and you were summarily dismissed due to your insubordination and reckless conduct in dealing clients' matters and entering into unnecessary argument in court with immigration judge.
We are therefore inclined to believe that you have intentionally taken instructions in this matter to set scores because of your personal vendetta with the firm. We suggest this because we have also come to know that you have been poaching and inciting clients of the firm belonging to a particular community to initiate malicious complaints before third parties. There is indicative of clear conflict involving ethical issues as you have been working on this file and have personal knowledge of the firm and its partners.
We are very surprised that you are defending the clients in this matter since you are aware of the amount of work that has gone into this matter and the complex nature of the case whilst you worked with the firm. We will therefore advise you that you ask Mr Butt to settle our costs as it will prolong matters and incur unnecessary costs of litigation due to your own vendetta. All legal work carried out in accordance with his own instructions and personal guarantees (verbal and in writing) also confirmed through his MP to pay our legal costs for his release and hence he has no defence…"
A copy of that letter was sent by Dean Manson to the Leeds county court, as was indicated at the foot of the letter itself.
"Thank you for your letter of 18 February 2009 we suggest that you wait for the decision of your premature and irrational application for strike off. We will state our position in defence before the Court should the need arise.
We will also put you on strict notice that your former partner Mr Sajjid Ali had also worked with and passed out from this firm who had personal knowledge of the partners and the firm with whom you using his name later established partnership with thereby misleading the law society and general public unbefitting of the legal profession because Mr Ali has no permission to remain and work in the UK in breach of the law of land. We believe it is important for the court to know of you and your partner's level of past association with our firm."
Mr Iqbal's claim
"upon his immigration status clearing he left his wife and without a proper divorce has announced and entered into another marriage overseas and has brought in his second wife pretending to be a student from Pakistan thereby circumventing the law of the land. The Defendant has therefore experienced that the Claimant has a tendency to exploit and use people for his benefit and on achieving his goals to misbehave later, one of the reasons [t]hat the Defendant decided to dismiss him…There were also complaints from clients regarding his conduct and entering into arguments with a judge in court and complaints from clients" (at para 10).
"The Defendant had no contact with the Claimant after his departure from the Defendant's office on or about 30th March 2006 or shown any interest in his professional life whatsoever…the Defendant believes that after his unpleasant departure from the Defendant's firm the Claimant is more likely to hold a personal grudge against the Defendant and in particular the Senior Partner who was compelled to ask the Claimant to leave the premises on dismissal" (at para 12).
There are repeated allegations in the defence about personal and professional grudges held by Mr Iqbal against Dean Manson and Mr Mansoor, of Mr Iqbal's "vendetta", of his seeking "an opportunity for avenge", and of his "bad faith" and "malice" (for instance at paras 17, 24, 26, 30 and 36/37).
The judgment of HHJ Ellis in the Croydon county court
The judgment of Teare J: the first appeal
"It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable."
(Section 7(2) provides that "References to harassing a person include alarming the person or causing the person distress".) On the basis of Lord Phillips' test the judge concluded that, although they contained "unfortunate and regrettable passages", the first two letters (those of 28 January and 17 February 2009), cannot be said to be oppressive or unreasonable. However, the judge accepted that the third letter (that of 26 February 2009) was arguably capable of being described as harassing: but it "was only one instance and so does not form a course of conduct" (at paras 18 and 24). In that latter judgment he had in mind that, for a civil claim to arise, the Act requires a "course of conduct" and section 7 defines "course of conduct" in relation to a single victim as "conduct on at least two occasions".
"It is said that that also amounts to harassment of Mr Iqbal. It does not appear to have anything to do with the dispute between the parties and is an unfortunate paragraph to find in the defence. However, I do not accept that it amounts to a second heading or occasion of harassment for two reasons. Firstly, the cause of action for harassment has to be established like any cause of action as at the date of the claim form and what is said in the defence naturally occurs thereafter. Secondly, although this allegation may have no place in the defence, if it is truly irrelevant then it is open to the claimant to seek to have it struck out. It is put in the defence, perhaps misguidedly by the defendant, but I do not think it can amount to harassment."
The issues on this appeal
The Prevention from Harassment Act 1997
"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…
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
(3) Subsection (1)…does not apply to a course of conduct if the person who pursued it shows…
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
2 Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1(1)…is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
3 Civil remedy
(1) An actual or apprehended breach of section 1(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…
7 Interpretation of this group of sections
(1) This section applies for the interpretation of sections 1 to 5A.
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve –
(a) in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person…
(3A) A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another –
(a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and
(b) to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.
(4) "Conduct" includes speech.
(5) References to a person, in the harassment of a person, are references to a person who is an individual."
Issue (i): The three letters
"31. The fact that conduct that is reasonable will not constitute harassment is clear from section 1(3)(c) of the Act. While that subsection places the burden of proof on the defendant, that does not absolve the claimant from pleading facts which are capable of amounting to harassment. Unless the claimant's pleading alleges conduct by the defendant which is, at least, arguably unreasonable, it is unlikely to set out a viable plea of harassment."
" Whether conduct is reasonable will depend upon the circumstances of the particular case. When considering whether the conduct of the press in publishing articles is reasonable for the purposes of the 1997 Act, the answer does not turn on whether the opinions in the article are reasonably held. The question must be answered by reference to the right of the press to freedom of expression which has been so emphatically recognised by the jurisprudence both of Strasbourg and this country.
 Prior to the 1997 Act, the freedom with which the press could publish facts or opinions about individuals was circumscribed by the law of defamation. Protection of reputation is a legitimate reason to restrict freedom of expression. Subject to the law of defamation, the press was entitled to publish an article, or series of articles, about an individual, notwithstanding that it could be foreseen that such conduct was likely to cause distress to the subject of the article.
 The 1997 Act has not rendered such conduct unlawful. In general, press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment. A pleading, which does no more than allege that the defendant has published a series of articles that have reasonably caused distress to an individual, will be susceptible to a strike-out on the ground that it discloses no arguable case of harassment.
 It is common ground between the parties to this appeal, and properly so, that before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve. It is also common ground that such circumstances will be rare.
 Mr Pannick QC, for the respondent, offered the example of an editor who uses his newspaper to conduct a campaign of vilification against a lover from whom he has broken off a relationship. Mr Browne rightly submitted that editorial comment would only amount to harassment if it incited, provoked or encouraged harassment of an individual.
 It is not necessary for this court to rule on Mr Pannick's example, nor to attempt any categorisation of the types of abuse of freedom of the press which may amount to harassment. That is because the parties are agreed that the publication of press articles calculated to incite racial hatred of an individual provides an example of conduct which is capable of amounting to harassment."
" This is a real and understandable concern. But these difficulties, and the prospect of abuse, are not sufficient reasons for excluding vicarious liability…Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the "close connection" test. 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 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."
"A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour."
Issue (ii): Course of conduct
"The Act requires that an offence must be committed more than once before it can be actionable, and it was committed more than once."
In my judgment, however, that cannot be right (and I suspect was not what Burton J intended to say, as is demonstrated by what is said elsewhere in his judgment). The "offence" cannot be committed without a course of conduct, and there is no need for more than one offence, only for more than one incident, or, in the neutral words of the Act, "conduct on at least two occasions".
"Similarly, the purpose of the Act, it seems to me plain, is intended to render actionable conduct which might not be alarming if committed once, but becomes alarming by virtue of being repeated – the repetitious conduct to which Latham LJ referred [in Pratt (2001) 165 JP 800]…It seems to me that…what was intended was that something which might not be alarming the first time would become actionable, criminally and civilly, on the second occasion. It is, therefore, in my judgment, not necessary for there to be alarm caused in relation to each of the incidents relied upon as forming part of the course of conduct. It is sufficient if, by virtue of the course of conduct, the victim is alarmed or distressed."
Issue (iii): the defence
Issue (iv): partnership as a defendant
"Unless the statute expressly or impliedly indicates otherwise, the principle of vicarious liability is applicable where an employee commits a breach of a statutory obligation sounding in damages while acting in the course of employment."
Lord Hope expressly contemplated that an employer could be secondarily liable as such an aider etc (at ); while Lord Carswell said (at ) that –
"One can envisage situations in which it is desirable that there should be vicarious liability for the acts of an employee towards a member of the public, where the victim cannot identify the employee or obtain redress from him."
" This passage suggests that the effect of the Interpretation Acts is, in effect, to create a single legal entity that can itself commit an offence. Those Acts do not, of themselves, produce that result. The effect of those Acts is that where a statute refers to a 'person' 'unless the contrary intention appears' that word should be read as including a partnership. The Acts do not state what the effect is to be of giving the word 'person' such a meaning. There is a dearth of cases in the reports (indeed we have been referred to none) where the prosecution have relied upon one of the Interpretation Acts to bring criminal proceedings against a firm in relation to a statute that makes it an offence for 'any person' to do or to fail to do a specified act…
 This case involved an offence of strict liability. Had it involved mens rea it would not have been open to the court to have convicted the partner who was not complicit. Would it have been open to the prosecution to prefer the information against the firm and then seek to recover the fine imposed from the two partners jointly? We do not find it easy to answer this question. It is one thing to hold a limited liability company open to prosecution for an offence that requires mens rea. It is another to hold a partnership open to prosecution if the consequence of a conviction will be to render liable in respect of the penalty persons who had no involvement in the offence. In the present case three of the partners in the Partnership had retired and played no part in the running of the firm. One lived abroad. It seems to us that the question of whether or not the context permits one to read 'person' in a criminal statute as including a partnership may depend critically upon whether there is some restriction upon the assets that will properly be available to meet any penalty imposed."
Permission to appeal
Lady Justice Smith:
Lord Justice Richards: