England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London WC2A 2LL
		26th October 2017

See also Order

LJ LEWISON:

1. For many years Mr Rushton has been conducting a campaign against the RICS of which he is a member. His campaign is conducted by email and by posts on social media, and through a website called Implacable Hostility. Throughout the campaign he has accused the RICS, employees and former employees of the RICS of dishonesty, corruption, hypocrisy, conspiracy to cover up wrong-doing and perversion of the course of justice. His language is personally abusive and in some cases his emails have been threatening.
2. On 13 March 2017, May J decided that the campaign amounted to harassment and granted an injunction against Mr Rushton to stop it. Mr Rushton now seeks permission to appeal. In his lengthy skeleton argument he relies on the principle of free speech. In essence he argued, at least in writing, that as long as he did not incite violence he was entitled to say what he wants, as often as he wants, and as offensively as he wants. In a supplemental written skeleton argument he pointed to the jurisprudence of the United States of America. He said that free speech is always a trump card. That expression does indeed occur in some of the domestic authorities, I was shown the decision of this court in R v Central Independent Television, in which Hoffman LJ emphasised that the right of free speech is the right to be offensive, dangerous, irresponsible, and he said,

'It cannot be too strongly emphasised that outside the established exceptions or any new ones which parliament may enact in accordance with the, its obligations under the convention, there is no question of balancing freedom of speech against other interests, it is a trump card which always wins.'

3. The important point to note about that observation is that the trump card only operates outside the established exceptions or any others which Parliament may enact; and of course Parliament has enacted the Protection against Harassment Act in order to prevent harassment. So the argument is that this appeal would raise an important question about where the limits of legitimate protest against public officials should be drawn. The jurisprudence of the United States of America is, of course, not the jurisprudence of England and Wales, that was made abundantly clear by this court in Thomas v News Group Newspapers [2001] EWCA Civ 1233.
4. In this jurisdiction, freedom of speech conferred by Article 10 of the European Convention on Human Rights has to be balanced with the respect for private life conferred by Article eight of the same Convention. Article 10 expressly recognises that freedom of speech can be curtailed in so far as is necessary in a democratic society in order to protect the rights of others. Parliament has decided that one such right is the right to be free of harassment. There are many cases, both at first instance and in this court, in which speech not amounting to incitement of criminal conduct has been held to amount to harassment. Bombarding a former customer with gas bills and threats to cut off the supply, as in Ferguson v British Gas Ltd [2009] EWCA Civ 46, or bombarding an overdrawn bank customer with phone calls, as in Roberts v Bank of Scotland [2013] EWCA 882, are two examples. In the Roberts case, McCombe LJ said at paragraph 73, and I quote,

'For my part, like the judge, I was shocked by the content of some of these calls. Further, the sheer number of the calls coupled with the express threat of repetition until the banks wishes were complied with, was in my judgment wholly unacceptable.'

5. Although not in the bundle, again in DPP v Hardy [2008] EWHC 2874, Pill LJ said that conduct which may begin as a legitimate enquiry may turn into harassment if persisted in an unacceptable manner. The submissions made in the written argument were modified by Mr Hendy, QC this morning. He accepted that the messages sent by Mr Rushton were capable of being harassment, which is a considerable departure as I see it from the position that was argued in writing. The question whether they were capable of amounting to harassment was, in my judgment, adequately answered by the judge by reference to a sample of the communications. They plainly were capable of amounting to harassment, both because of the number, the vituperative nature, the personal abuse, and all the other factors, which she mentioned.
6. She specifically directed herself at paragraph [60], that it was the content and the quantity of communications emanating from Mr Rushton which did cross the boundary into harassment. One or two of the emails she said, would not cross the line, they would be dismissed as the ravings of a disappointed man, but:

'The remorseless repetition and instance of the messages and posts making ever wilder allegations of dishonesty, corruption, cover-up, conspiracy in my view amounts to more.'

She then went on to say in paragraph [62] that the mere fact that Mr Rushton had complained aggressively and offensively would not have justified an injunction. It was:

'The quality of relentless persistence of wild allegations against anyone at the RICS who enters his orbit that transforms what started as a justifiable grievance into abuse to the point of harassment.'

That, in my judgment is an unexceptionable direction.

7. It is argued on behalf of Mr Rushton that there was insufficient evidence to demonstrate that alarm and distress had been caused to any individuals employed or formerly employed by the RICS. It is, to my mind, still an open question whether it needs to be shown by evidence that distress has been caused. That was left entirely open by Lady Hale in Majrowski and Guy's and Thomas's NHS Trust [2006] UKHL 34. It is true that in Hayes v Willoughby [2013] UKSC 17, Lord Sumption said in the first paragraph of his judgment,

'Harassment is a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person, which is calculated to and does cause that person alarm fear or distress, see Thomas and Newsgroup Newspapers Limited.'

8. In fact the reference to the paragraph in Thomas does not bear out the assertion that the conduct does in fact cause alarm and the Act does not have that statutory requirement. Nevertheless, the judge in this case proceeded at paragraph [45] on the basis that such a finding of fact was a necessary ingredient of the tort. She found it proved by reference to the evidence of Mr Tompkins, the CEO of the RICS. It is said that she inferred that distress and alarm had been caused. I do not agree. She accepted the evidence that was before her. Mr Tompkins refers to distress caused to members of the staff of the RICS, some of whom he named in a number of parts of his evidence: see paragraphs 4, 21, 53, 59, 62 and 81. That was evidence on a Part 8 claim, which the judge was entitled to accept.
9. Mr Rushton's response is to complain that he was deprived of the right to cross-examine the RICS staff who were said to have suffered alarm and distress. The judge noted that submission at [39], but said that there was sufficient material before her to enable her to reach a conclusion. Since there was evidence, albeit second hand hearsay evidence, which is fully admissible in a civil trial, she was entitled to accept that evidence. The procedure for bringing a claim under the Protection from Harassment Act is required by the CPR to be begun by a Part 8 claim by virtue of rule 50, Part 65, rule 28. CPR Part 8, rule 8 makes provision for an objection to the use of the Part 8 procedure to be made in a defendant's acknowledgment as service.
10. No such objection was taken in the acknowledgment of service although it is fair to say that Mr Rushton in his first witness statement did say that if it was alleged that RICS employees had suffered acute alarm and distress he reserved the right to cross-examine them. Mr Beaumont, counsel at the time for Mr Rushton, did try to agree with those representing the RICS that there should be cross examination. They refused to agree but nonetheless said that if it was desired for cross-examination to take place, Mr Rushton should make an application for an interlocutory order to that effect. No such application was ever made and no application for an adjournment was made to the judge. In those circumstances I consider that the judge was entitled to proceed on the materials that she had in the absence of cross-examination, and of course in the absence of cross-examination there was no reason for her not to accept the evidence given by Mr Tomkins.
11. The last point of substance relates to the position of former employees of the RICS. It is said in the skeleton argument that the RICS did not come with clean hands in that they concealed, so it is said, that some of the persons making complaints had left their employment. That is not borne out by the evidence, which makes it quite clear that at least two of the employees had left the RICS's employment, but in any event that would be no ground for refusing the injunction. The equitable maxim applies where the lack of propriety goes to the very heart of the equitable relief that is being sought.
12. The last point is that the injunction granted was too wide because it extended to former employees of the RICS who are within the class of protected person as defined by the order. Since the early days of the Act it has been held that a company can bring proceedings on behalf of its employees. The procedural mechanism used for that purpose was the making of a representation order under CPR Part 19.6. The only relevant requirement for the making of such an order is that the parties have the same interest. Do former employees harassed by Mr Rushton have the same interest as current employees whom he harasses? In my judgment it is clear that they did. There was therefore nothing wrong in the RICS bringing proceedings on behalf of all its employees, both past and present who were caught up in Mr Rushton's campaign of vilification.
13. The remaining grounds add nothing of substance, I am satisfied that the appeal would have no prospect of success, and consequently I refuse permission.
End of Judgment Transcript from a recording by Ubiqus 61 Southwark Street, London SE1 0HL Tel: 020 7269 0370 legal@ubiqus.com (This transcript has been approved by the judge)