ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE STAITE)
Strand London WC2A 2LL |
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B e f o r e :
LORD JUSTICE JACKSON
and
LORD JUSTICE BEATSON
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BANK OF SCOTLAND | Appellant/Defendant | |
--and-- | ||
JOHNSON | Respondent/Claimant |
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The Respondent's husband appeared in person on her behalf
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Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. Conclusion.
"(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."
"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(1)(A)) conduct on at least one occasion in relation to each of those persons."
"Our client: Halifax, A Division of Bank of Scotland Plc, Account number: 38017264086
Balance: £945.44.
We refer to the above matter and write to inform you that for the second time you have failed to maintain payment in accordance with the agreed arrangement.
Please be advised that you now have 48 HOURS from receipt of this letter to contact this office to arrange payment of the outstanding amount due under the terms of your arrangement.
Failure to respond to this may result in action proceeding for the full balance outstanding."
"I can confirm that the balance of your account is now at zero".
This letter did not state the account number of the account which now had a zero balance.
"The Defendant therefore cannot agree to stop contacting the claimant until such time as the balance of the Current Account has been repaid in full."
"I have taken instructions today and on my information, I am not sure that this is not disputed by Mr and Mrs Johnson, but my information is that, given the problems there has been with the debt collection agencies, from Mr Johnson's point of view, the claim has been recalled back in house for the time being, so it is being dealt with by my instructing solicitor and the bank's in house recovery department. That has only been fairly recently. That happened on 20th February and so it may be that Mr Johnson was not aware of that. They have put on hold for the moment recovery activity, until this is resolved, but the bank's position is of course that it needs to be resolved. What they would like to do is to put a payment plan in place that is suitable for Mr and Mrs Johnson. In order to do that, they would like to have some up to date information about income and expenditure. They are also happy for Mr Johnson to contact the bank in the way that he wishes, so a suggestion has been made that, rather than having to deal with personnel at the bank, he could deal with the senior solicitor at STM, who has been involved in this case, and that correspondence could be just by way of writing, so there would be no telephone calls. That is, of course, providing that correspondence sent by the solicitors is answered, but what the proposal was is to take, for the time being, Mr and Mrs Johnson's telephone number off the records so that they would not receive any telephone calls."
"Upon hearing the Claimants husband and hearing Counsel for the Defendant
and upon the court noting that
i) the claimant is Mrs Marian Pamela Johnson;
ii) Mr Stephen William Johnson is not a claimant;
iii) the defendant is Bank of Scotland Plc;
iv) the defendant has indicated to the court that it has withdrawn instructions to its debt recovery agent Robinson Way and that it intends that future communications with the claimant will be conducted in writing and not by telephone and will be conducted either by the defendant or by solicitors (currently SCM Solicitors)
IT IS ORDERED THAT
1. The claim and application for summary judgment be dismissed.
2. No order for costs."
"Upon hearing from the Claimant's husband and Counsel for the Defendant, and upon the court noting with disapproval that the Defendant has not complied with the recital to the Order of Deputy District Judge Keating dated 19 March 2012
IT IS ORDERED THAT
1. The Defendant is to file and serve an explanation for the failure to comply with paragraph (iv) of the order of 19 March, by no later than 4pm on 13 June 2012;
2. The Claimant's appeal against the Order of Deputy District Judge Keating dated 19 March 2012 is to be heard by Circuit Judge Staite at 10.30am on 3 August 2012 with a time estimate of 2 hours 30 minutes;
3. The parties are to come prepared for a full final hearing to take place on 3 August 2012 in the event that the Claimant's application for permission to appeal is successful, in particular
a) Mrs Marian Pamela Johnson is to attend on 3 August 2012 to give evidence as the Claimant;
b) Mrs Kelly-Jane Elizabeth Duffy is to attend to give evidence on behalf of the Defendant;
c) The Defendant is to bring sufficient copies of a paginated bundle for use at the hearing. The bundle is to include all documents relevant to the appeal and any final hearing;
4. No order as to costs."
(i) The bank caused confusion by failing to inform the claimant of the changes in account number and in failing to make clear which accounts were the subject of debt recovery arrangements.
(ii) The letters and phone call from the bank's solicitors and debt collectors amounted to unlawful harassment of the claimant.
(iii) The deputy district judge erred in dismissing the claimant's claim on 22 March 2012. He should have adjourned the claim for future consideration.
(iv) Accordingly, permission to appeal should be granted.
(v) The bank's recent decision to write off the claimant's debt on account 543 represents "a fair and genuine means of resolving the issues between the parties".
(vi) In the circumstances, the only substantive relief to which the claimant was entitled was (a) an order recording that her debt had been written off, and (b) an award of costs.
(vii) The costs award to the claimant should be reduced by 50 per cent because the claimant had acted unreasonably in rejecting out of hand the bank's offer of 11 June.
"Upon hearing the Claimant's husband in person, hearing Counsel for the defendant
And Upon reading the documents in the hearing bundle
And Upon the Defendant previously writing off the debt in the Claimants bank account [543], also referred to as [4086]
IT IS ORDERED THAT
1. The Claimant is granted permission to appeal
2. The appeal is allowed
3. The defendant is to pay 50% of the claimant's costs of the appeal, to be assessed if not agreed..."
The judge then gave directions for the summary assessment of the claimant's costs.
Lord Justice Beatson:
Lord Justice Lloyd:
Order: Appeal dismissed