ON APPEAL FROM THE COUNTY COURT AT NOTTINGHAM
HIS HONOUR JUDGE OWEN QC
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE ROSE
| (1) MR COLIN WORTHINGTON
(2) MS LYNDA PARKIN
- and –
|METROPOLITAN HOUSING TRUST LTD
Philip Davy (instructed by French & Co) for the Respondents
Hearing date: 8th March 2018
Crown Copyright ©
Lord Justice Kitchin:
The legal framework
"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 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
(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.
"Where … 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."
"… the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3). All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. 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."
"whether the conduct is of sufficient gravity to justify the sanctions of the criminal law."
"…. On checking previous correspondence I note you were given advice from MHT's solicitor about the siting of your camera and restrictions on the recordings. It would appear from the content of the complaint that you have ignored some of this advice and this may have serious implications for you.
I therefore ask that you redirect your camera so that it does not capture routine activities of children and young people. You are also asked to arrange for the removal from public display [of] images of young people where permission has not been given for their use. Please let me know when this has been done.
I regret that, if you fail to comply with these requests, I will have no option but to withdraw our consent to the fitting and use of CCTV cameras on our property and you will need to render them inoperable or take them down. …"
"Vanessa has forwarded me your email. We spoke yesterday about the CCTV Lynda has installed. Due to the nature of complaints and seriousness of the [sic] we are having to seek legal advice from our solicitors. As I explained to Lynda when I visited her on 6th September my advice to her was to remove them. She has failed to take my advice and complaints continues [sic] regarding the CCTV. The Association have to act on every complaint…"
Re: Spirita Limited
We have been instructed by the above named who advise us of concerns which have been expressed to them about the use by you of CCTV cameras from within the premises at 52 Hardwick Drive that you rent from our client.
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. Our clients refute that the reason for you taking these photographs relates to your own security. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. You have already been advised to move the cameras from the positions which they are installed but we understand that you have refused to do so.
So that our clients can assess the merits of the complaints against you as regards pictures being taken of third parties we request you disclose to us copies of all pictures you have taken using this equipment."
Re: Spirita Limited
We have been instructed by the above named who advise us of concerns that have been expressed to them about the use by you of CCTV cameras from within the premises at 46 Hardwick Drive that you rent from our client.
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. We are instructed to advise that our clients require you to remove the cameras from the positions where they are installed forthwith.
In the first instance our clients wish to assess the merits of the complaints against you as regards pictures being taken of third parties and we request that you disclose to us copies of all pictures you have taken using this equipment."
"This petition is regarding Linda [sic] Parkin and Colin Worthington having cameras facing onto the children's football field and also facing residents [sic] properties which we feel is invading peoples [sic] privacy. We would like Spirita to act on this immediately and take action to have these cameras removed with immediate effect."
"Lynda's new home is only a couple of doors away from Colin Worthington's home. Lynda and Colin now have 3 cameras each in their homes, and between the 6 cameras are filming a large area including several residents' homes. We have received complaints from 5 households who feel that Lynda and Colin's cameras are infringing their privacy. Formal statements are being taken from each of these households this week.
In addition, the local Beat Manager- PC Akeel visited Lynda's home on Monday 24th September and reported back to us that Lynda's cameras were filming the roundabout in the centre of Arkwright, and also the front door to the Spirita Arkwright office. We think that this is infringing the privacy of customers who may choose to visit the office. The Police have told us that they have had had numerous complaints from residents about the CCTV cameras, and while they cannot take action as the issue is a civil one, they are concerned and do want to see action taken to resolve the issues as soon as possible.
The advice from our solicitor [Martin Lee] is that, should the cameras not be removed and the footage not be supplied, we should seek an injunction against both Colin and Lynda to compel them to remove or resite the cameras."
"Cases like this often lead to counter-accusations, and I would be astounded if there is any possible ground under which we could threaten legal action if the cameras are positioned as described [by Mr Worthington], and the only way to check this is to go and view them. That being the case, I would be disgusted if it turns out that a threat of legal action has been made without so checking.
As a Board member I would expect to receive an immediate assurance that this is not the case or to be advised of the legal advice that supported this action. In the absence of either of these I will expect to see a copy of a letter to the person concerned setting out the proposed current course of action."
"Re: Tenancy Breaches
I am writing to you further to our recent correspondence about your CCTV system.
Despite your assurance that you do not have, and you have never had, CCTV cameras at your property we have evidence to suggest that cameras were in use at your property very recently.
In addition, Spirita have received a petition signed by some 80 Arkwright residents who feel that their privacy and that of their families is being invaded by your cameras.
This represents a serious tenancy breach and is causing considerable concern to members of the Arkwright community, Spirita and the Police.
On that basis I am writing to notify you that you will shortly be served with a Notice of Seeking Possession (NSP). In addition, Spirita intend to pursue legal action against you in this matter, and we will be taking legal advice from our solicitors on our next course of action.
You will be delivered a Notice of Seeking Possession within the next few days and we will notify you of the further legal action we intend to take in due course."
"We have evidence that your cameras are filming areas of Arkwright including the road, car park and field. This constitutes an invasion into the privacy of members of the public."
"Our clients have received a number of complaints from others living in the locality to the effect that they are being caused a nuisance and annoyance by virtue of the fact that your cameras are placed in a position that records images of people going about their lawful business in public areas. It is a term of your tenancy that you should not cause a nuisance or annoyance to neighbours, other residents or persons carrying out lawful activities within the locality."
They concluded with a threat of legal proceedings unless the CCTV cameras were removed forthwith.
"I have now had the opportunity to check with Spirita. I understand that Spirita are seeking an injunction against you and are still waiting for a court date. I am sure you understand that I cannot comment on the information in your email while the legal proceedings are in progress …
Meanwhile you will continue to be suspended from the NRG while legal action is pending and I will contact you again after the court hearing to discuss your continued membership of the NRG…"
"We are instructed that your client has not removed the CCTV cameras and in the circumstances we write to advise that unless we receive confirmation that the equipment has been removed within the next 7 days then we are to make an application for an injunction to enforce the terms of the tenancy agreement."
"It was from this moment that these parties got off on the wrong foot, but significantly, it is clear, and I find, on the evidence before me, that the probability is, whatever may have been the duties and functions of Miss Cartledge, Miss Thomas or Miss Watson, Mr Kotecha had the freedom to deal with this matter in the way he saw fit, and that was why it was, in effect, he, the junior employee, who was giving instructions to the solicitor and why it was that the solicitor, in turn, having produced his draft letter, sought verification from Mr Kotecha. It is in the light of that lack of supervision and care by Mr Kotecha's managers, and Mr Kotecha's own carelessness or incompetence that the solicitors' threatening letters of the 21st and 24th September were sent out. Without more, these letters may not constitute free standing evidence of a completed cause of action, they are material parts of the overall course of conduct complained of which culminated in the decisions taken which directly affected the Claimants on 11 October 2007 to which I have referred."
"…[Mr Worthington] never had any equipment at all and it begs the question how could such statements be obtained from residents where it is asserted that he did? The answer is that baseless allegations were assumed to be true and acted on, using the powers and resources available to the Defendants in their capacity as the Claimants' landlords in an oppressive manner."
"So far as [Ms Parkin] is concerned she clearly did have such equipment, wholly lawfully whilst she was at number 28 without abuse of that equipment, and understandably the same equipment, it was assumed by her, reasonably, could be carried with her to number 52 on the condition that it be used under the same conditions. Incidentally, such permission was given retrospectively. I find that that equipment had at all times been used responsibly. Put in another way, there is no evidence which I find credible to show that [Ms Parkin] has acted other than responsibly with this equipment."
"It is also likely that [Mr Kotecha] gave the appearance in the meeting of the 10th October and to Miss Thomas and also Miss Watson as being entirely on top of the case and that he instilled in them confidence in his assessment of the position, contributed to by their lack of minimum critical scrutiny and positive management and supervision. The [Association's] position is that that is not so and that proper management was exercised; at that meeting there were no less than four levels of management above Mr Kotecha and that the decision, a joint decision, was take in a responsible way. I am unable to accept that general explanation. For the reasons I have given, the approach was utterly flawed and hopelessly careless, not least since they had been given clear, specific guidance, given the nature of the allegations and the nature of this case, the basic steps which had to be taken, by [Mr Hewgill] and more recently, at the time, by Mr Lothian. Without, as I find, any or any adequate explanation, those basic and sensible steps were not taken. The probability is that everybody was going along with Mr Kotecha's presentation because there had been utterly inadequate, uncritical analysis by Miss Thomas, Miss Watson and Miss Cartledge. Solicitors' letters were sent out on a wholly incorrect and unjustified basis. [Mr Worthington] never had CCTV. He had made that plain consistently. [Ms Parkin] had CCTV, but she was permitted, in relation to 28, and so far as somebody subsequently had the bright idea that there was a technical deficiency in that formal permission for number 52 had not in fact been sought, the parties had reasonably proceeded on the basis that it was implicit that she had permission arising out of the initial permission, given the absence of any express prohibition against her when the [Association] agreed to her changing her tenancy from 28 to 52. Following the initial threatening letters in late September 2007 matters gathered momentum in the first week of October, as I have found and described and the result was the letters of the 11th October, followed by the letters threatening and indeed on one occasion asserting that proceedings were underway, through to until June 2008 for [Ms Parkin]."
"The case collated by Mr Kotecha was fundamentally flawed in that there was no true basis in fact for it and there was no justification for recommending, urging or taking action on that basis without the basic limited investigatory steps being taken, which it was acknowledged [later] should have been taken. Basic competence and fairness required the staff concerned to comply with the very wise, sensible advice and guidance, offered respectively, by [Mr Hewgill] and [Mr Lowthian]. The result is that, although it was suggested in evidence that on the 10th October there was a "very, very careful" examination of the facts to see what the appropriate action be taken, I am unable to find that any such careful examination took place. The result was that, without any sound factual basis, the [Association] sent out the threatening letters to which I have referred, which had the practical effect of threatening possession proceedings and loss of their home, injunction proceedings and all that would entail in relation to their behaviour, in circumstances where it was unwarranted and unjustified. Such conduct, viewed in context, in those circumstances, in my judgment, for those reasons, was oppressive and unacceptable. The truth of the matter is there is no evidence capable of supporting this behaviour. It goes beyond being merely unreasonable or disproportionate."
"79. In my judgment the cause of action is established. To exercise the powers of threats of possession and injunction proceedings requires care. The power should not be exercised in an oppressive manner nor in circumstances where it is simply unacceptable and wholly unjustified. I am satisfied that the [Association's] conduct in embarking on such a course and making sustained threats to [Mr Worthington and Ms Parkin] involving the real risk of the loss of their home, not least in the context of the underlining insinuation of wrong focus on children constituted on the facts of this case harassment.
80. The requirements of the statutory provisions referred to at the outset of this judgment have been established. Two or more acts of harassment have been made out and the necessary course of conduct is proved. A reasonable person in possession of the information known or ought to have been known by [Association's] relevant staff… would think, I find, that this course of conduct amounted to or involved harassment of [Mr Worthington and Ms Parkin]. This course of conduct took place and directly impacted upon [Mr Worthington and Ms Parkin] between no later than 11 October 2007 and 11 January 2008 and between 11 October 2007 and 16 June 2008 respectively (if not in fact from 21 and 24 September 2007 respectively) as appears from the [Association's] and their solicitors' letters threatening legal action in respect of alleged breach of tenancy conditions, injunctions and possession. If a responsible and balanced approach referred to earlier had been taken from the outset those threatening letters would not have been sent and [Mr Worthington and Ms Parkin] would not have been alarmed and distressed by the course of conduct which I find established.
81. For those reasons I am satisfied that the course of action and a right to damages is established for the limited period to which I have referred."
Mrs Justice Rose: