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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hayes v Butters & Ors [2014] EWHC 4557 (Ch) (10 December 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2014/4557.html
Cite as: [2014] EWHC 4557 (Ch), [2015] 1 Ch 495, [2015] 2 WLR 1634, [2015] 3 All ER 702, [2015] BPIR 287, [2015] 1 CH 495, [2015] Ch 495
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CHANCERY DIVISION
7 Rolls Building Fetter Lane London EC4A 2NL |
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B e f o r e :
____________________
| TIMOTHY HAYES |
Claimant |
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| - and – |
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| (1) GRAHAM BUTTERS (2) CAROL HAYES (3) STEPHEN GRANT |
Defendants |
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8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 020 7421 4036 Fax No: 020 7404 1424
Web: www.merrillcorp.com/mls Email: courtcontracts@merrillcorp.com
(Official Shorthand Writers to the Court)
MR WOLMAN appeared on behalf of the Third Defendant
MR SIMS appeared on behalf of the Claimant
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Crown Copyright ©
- I have before me an application by Mr Stephen Grant, the trustee in bankruptcy of Mr Hayes v Butters & Ors, to strike out this action which is a claim brought by Mr Hayes against his ex-wife, Mrs Carol Hayes, and her partner, Mr Graham Butters, under the Protection from Harassment Act 1997 ("the 1997 Act").
- This is the third in a series of judgments that I have given in related actions and applications. I gave Judgment No. 1 on 12 June of this year on an appeal by Mrs Hayes against the dismissal of a bankruptcy petition by which she sought to make Mr Hayes bankrupt a second time. I dismissed that appeal: see Hayes v Hayes [2014] EWHC 2694 (Ch). I gave Judgment No. 2 on 11 July of this year on an application by Mr Hayes to strike out an action brought against him by Mr Grant in relation to proceedings Mr Hayes had taken in the Cambridge County Court against a Mr Willoughby under the provisions of the 1997 Act. I acceded to that application and struck out Mr Grant's proceedings: see Grant v Hayes [2014] EWHC 2646 (Ch). Now Mr Grant seeks to strike out the present claim by Mr Hayes against Mr Butters and Mrs Hayes essentially on similar grounds to those advanced in the Willoughby proceedings which I considered in Judgment No. 2. I will not repeat all the background to the present application, some of which is contained in Judgments No. 1 and No. 2, but will try and state no more of the facts than are necessary to resolve this application.
- Mrs Hayes successfully petitioned for Mr Hayes to be made bankrupt in 2005 based on a costs order in matrimonial proceedings which had been quantified at some £35,000 and which Mr Hayes has not paid. Mr Hayes was made bankrupt on 23 March 2005. He was discharged from his bankruptcy in the spring of 2006. Mr Hayes says that was on 23 March 2006. Mr Grant, for some reason, says it was on 1 April 2006. Nothing turns on that for present purposes.
- The Official Receiver initially became trustee of Mr Hayes' estate but on 4 June 2013 Mr Grant was appointed trustee in his place.
- On 28 November 2005 Mr Hayes issued a claim form in the present proceedings in the Queen's Bench Division of the High Court against Mr Butters and Mrs Hayes. The claim form was endorsed with brief particulars of claim in which he alleged that since around February 2003 Mr Butters, acting either for himself or for and on behalf of Mrs Hayes, had maintained a campaign of letters, telephone calls and visits to the claimant, the claimant's current wife and business, and personal contacts of the claimant. He then alleged in paragraph 3 that that was contrary to the 1997 Act and that the defendants had thereby alarmed the claimant and his wife and caused them injury, anxiety, distress and psychological harm. He said that full particulars of the course of conduct were set out in a statement of his served therewith and that full particulars of injury and loss would be served in due course. He claimed, firstly, an injunction and, secondly, damages.
- The central foundation of the argument for Mr Wolman, who appears for Mr Grant in these proceedings, as he did before me in the application I dealt with in Judgment No. 2, is as follows: (1) this cause of action, being a so-called hybrid claim, vested in Mr Hayes' trustee as part of his estate under the principle of Ord v Upton [2000] Ch 352; (2) it was an abuse of process for Mr Hayes to pursue it himself; and (3) it should therefore be struck out.
- I gave some account of the 1997 Act in Judgment No. 2 but I should do so again and in more detail. Section 1(1) provides as follows:
- Section 1(2) deals with the requisite knowledge of the defendant. Section 1(3) provides what can conveniently be called defences, although they might more properly be called justifications, as follows:
- Section 2 makes it a criminal offence to pursue a course of conduct in breach of section 1(1).
- Section 3, headed "Civil remedy", provides for remedies for the victims of harassment as follows:
- The section does not expressly say that a victim may apply for an injunction but section 3(3) provides:
- Section 7 contains some relevant definitions. Section 7(2) provides:
- Section 7(3) provides:
- In civil cases, therefore, a claimant may claim damages and/or an injunction. The damages may certainly include, although are not necessarily limited to, damages for anxiety caused by the harassment, and financial loss resulting from the harassment: see section 3(2). It is implicit in that that in order to recover damages the claimant has to prove both that there has been harassment and that the harassment has caused the loss in question. It is also a requirement that the claimant establishes a breach of section 1: see section 3(1). That means that the claimant must show: (a) conduct on at least two occasions (see section 7(3)); (b) that that conduct constitutes a course of conduct that amounts to harassment (see section 1(1)); and (c) that that course of conduct has caused him loss.
- In relation to an injunction it is not I think strictly necessary for the claimant to establish that there has already been harassment because section 3(1) refers to an "actual or apprehended" breach of section 1(1) by someone who "is or may be" the victim. On the other hand, the Court will not in practice grant an order restraining a defendant without good ground for thinking that unless restrained the defendant will behave in a wrongful way and in normal circumstances, no doubt, a claimant will rely on past harassment as giving rise to a well-founded apprehension of further harassment. Nevertheless, strictly speaking, whereas for damages the claimant has to show that the defendant has pursued a course of conduct in breach of section 1(1) and has thereby caused anxiety or financial loss or other damage, for an injunction what a claimant has to show is an apprehension of a future breach of section 1(1).
- In the present case, of course, Mr Hayes has sought both damages and an injunction. I will have to look at the damages claim more closely in due course but it is first worth noting that Mr Wolman and Mr Sims, who appears for Mr Hayes, are agreed that whatever happens Mr Hayes is free to pursue his claim for an injunction, although they do not, I think, entirely agree on why this is so. Mr Sims submits this is because the claim for an injunction is a separate cause of action from the claim for damages. Mr Wolman, as I understand it, based his agreement more on the fact that the Official Receiver indicated in 2007, and possibly earlier, that he had no objection to Mr Hayes pursuing his claim for an injunction and Mr Grant does not seek to go behind that.
- For what it is worth, I tend to agree with Mr Sims that the claim for an injunction is technically a separate cause of action from the claim for damages. A cause of action is:
- As I have sought to explain, the set of facts which entitle a claimant to damages is not necessarily co-extensive with the set of facts that entitle a claimant to an injunction, although in practice there is likely to be a very significant overlap. A claimant seeking damages has to show that the defendant has acted in breach of section 1(1), but this is neither strictly necessary nor sufficient for an injunction to be granted. It is not strictly necessary because what is required for an injunction is an apprehension of a future breach, not proof of a past one. It is not sufficient because proof of a past breach does not necessarily mean that there will be any future breaches. I add that, quite apart from this, it would seem very surprising if a claim for an injunction to restrain harassment, something which is not of any monetary value nor, one would have thought, of any concern or interest to creditors of the bankrupt's estate, could ever be vested in a trustee in bankruptcy. Indeed, I am rather doubtful if it is "property" within the meaning of the Insolvency Act at all. But it is unnecessary to consider these points further as it is not disputed that, for whatever reason, Mr Grant does not seek to prevent Mr Hayes from pursuing his claim for an injunction.
- When it comes to damages, however, Mr Wolman submits that the claim under the 1997 Act vested in Mr Grant. The principles are well-established and are as follows. By section 306 of the Insolvency Act:
- By section 283(1) of the Act the bankrupt's estate is defined as follows:
- By section 436 "property" is defined as follows:
- Although there is nothing in the statute to this effect, it has long been held that there is an exception for certain claims. In Heath v Tang [1993] 1 WLR 1421 Hoffmann LJ, as he then was, referred to this principle as follows at 1423A:
- In Ord v Upton there are further references to the Beckham v Dale case which illustrate the sort of claims which fall within this principle. I have already referred to what Erle J said, but there is a fuller quotation from his judgment at 363 of Ord v Upton:
- Vaughan Williams J in the same case referred to the exception in these terms:
- Whiteman J was of a similar view. He said:
- Those citations are sufficient to give the nature of the principle.
- However, some causes of action give rise to a claim for damages under two or more heads. In general the mere fact that there are two heads of damage claimed to have been caused by the same wrongful act does not mean there are two causes of action. See, for example, Stock v London Underground Limited (30 July 1999) in which the Court of Appeal was dealing with a case where tunnelling by London Underground was alleged to have caused both cosmetic cracking to a building and damage to a recording studio causing very large financial loss. This was held to constitute a single cause of action. See also Ord v Upton itself where the claim was against a doctor for negligence in the treatment that he prescribed to Mr Ord. The claimant claimed damages both for pain and suffering and for loss of earnings. It was accepted that there was only one cause of action. That appears from the judgment of Aldous LJ at 368C to D. It was something that he thought was plainly right. He said:
- Where a single claim gives rise to a claim both for personal loss within the exception and for non-personal loss which would prima facie vest in the trustee, then Ord v Upton establishes that, the cause of action being indivisible, the whole claim vests in the trustee, albeit any damages recovered in respect of the personal claim are held on trust for the bankrupt. Aldous LJ said at 369H:
- Then again at 371A to C he said:
- Those being the principles, Mr Wolman says that they apply to a claim for damages for harassment. He accepts that part of such damages are personal, and that if that was the only loss suffered the claim would not vest in the trustee. That applies to the claims for damages for "injury, anxiety, distress and psychological harm", to use the words pleaded in Mr Hayes' original particulars of claim.
- However, just like the claim for loss of earnings in Ord v Upton, which was held not to be a personal claim but to belong to the trustee and hence make the claim a hybrid one, so, Mr Wolman says, the claim here for financial loss as a result of harassment is a non-personal claim with the result that the claim as a whole is a hybrid one and vested in the trustee.
- Mr Sims has a number of answers to that submission. He points out that harassment is a statutory tort that differs from the tort of negligence. He says it is clearly constructed for the protection of an individual, and indeed there is the authority of a Divisional Court in DPP v Dziurzynski [2002] EWHC 1380 (Admin) per Rose LJ at 32 to 33, that "person" in the 1997 Act does not include a corporation. That was in the context of criminal proceedings but it was followed by Gibbs J in a case called Huntingdon Life Sciences Limited v Stop Huntingdon Animal Cruelty and others, of which I have only seen a brief digested report at [2003] AER (D) 280 (Jun) in which he is reported as saying that civil relief under section 3 of the Act could not be given to a company but only to a natural person. This has, incidentally, now been put on a statutory footing. In 2005 Parliament amended the 1997 Act by adding section 7(5) which says:
- Mr Sims then says that harassment differs from negligence, in that damages can be awarded even without injury for mere distress. He says it is a unique statutory tort. He also says that it further differs from negligence in that no foreseeability of injury is necessary: see Jones v Ruth [2012] 1 WLR 1495.
- I accept all this, but none of it I think suffices to draw a relevant distinction between this case and Ord v Upton. It is true that in law the claim there was for the tort of negligence but the negligence concerned was in relation to medical treatment that Mr Ord was prescribed. Clearly that was both in fact something that was suffered by an individual in a very personal and physical sense and in principle could, one would think, only be suffered by an individual. That did not affect Aldous LJ's conclusion that the loss of earnings arose from the impairment of the individual's earning capacity and that that was not a merely personal claim that fell outside the bankruptcy estate but was a claim that passed to his trustee.
- Mr Sims referred me to Grady v HM Prison Service [2003] ICR 753 where the Court of Appeal held that a claim for unfair dismissal was personal to the claimant. But it seems clear to me that the fundamental ground of that decision was that given by Sedley LJ giving the judgment of the court at paragraph [24] where he said:
- In my judgment a claim for damages for harassment cannot be characterised for the purposes of the law of insolvency as a purely personal claim in all circumstances. If in a particular case there is no question of any financial loss or any other resulting loss and the only claim that is or can be advanced is a claim for distress and anxiety, that is no doubt a purely personal claim, just as was the claim for damages for pain and suffering in Ord v Upton. If, however, the harassment has caused financial loss then I do not see that this is any different in kind from the claim to loss of earnings in Ord v Upton. Indeed, the essential similarity that can exist between the two torts is illustrated by Jones v Ruth where, according to the headnote in the Weekly Law Reports, the judge found that the defendants had by conducting a protracted campaign of harassment against the claimants caused the first claimant to suffer anxiety and depression leading to persistent somatoform pain disorder with associated loss of earnings. I cannot see a distinction between a medical negligence claim which leads to both pain and suffering and consequential loss of earnings and a harassment claim that leads to both pain and suffering and consequential loss of earnings. If the former is a hybrid claim, in my judgment so is the latter.
- In the present case Mr Hayes has consistently asserted that Mr Butters and Mrs Hayes waged a campaign against him that caused him, among other things, to suffer a substantial loss of earnings. It seems to me that Mr Wolman is right that if Mr Hayes has a claim for financial loss it is, or at the moment should be assumed to be, a hybrid claim. This conclusion is incidentally in line with the decision of Treacy J in the High Court of Northern Ireland in Young v Hamilton [2010] NI Ch 11 in which he was dealing with an action involving numerous causes of action, listed in paragraph [3] of the judgment as negligence, breach of contract, misrepresentation, wrongful interference with the plaintiffs' right of way, trespass, harassment in breach of Articles 3 to 5 of the Protection from Harassment (NI) Order 1997, nuisance, and negligent misstatement. I am told that the Protection from Harassment (NI) Order is in materially similar terms to the 1997 Act.
- He held at paragraph [31] that all those claims were proprietary in nature in the following terms:
- That, however, is not the end of the Ord v Upton point. In Ord v Upton the negligence complained of took place on a single occasion in 1991 long before Mr Ord's bankruptcy, which took place in 1995. If, therefore, the claim was a good one (and by the time of the Court of Appeal judgment liability had been accepted), there was no doubt that there was only one cause of action in temporal terms, and that it was one that had accrued to Mr Ord before the bankruptcy. That single cause of action then formed part of his estate and on the trustee's appointment vested in the trustee.
- However in the present case the question is different. The cause of action, as we have seen, rests on the claimant having suffered loss as a result of a breach of section 1(1) and that requires a course of conduct which itself requires conduct on at least two occasions. Moreover, it appears that proof of two instances of conduct does not by itself amount to proof of a course of conduct. That, at any rate, was the view of Schiemann J, as he then was, sitting in the Divisional Court in Lau v DPP 22 February 2000 when he said:
- So what is made wrongful is not each particular act but a course of conduct which necessarily extends over a period. Indeed, in Jones v DPP [2010] EWHC 523 (Admin) Ouseley J said at [27], after referring to what Lord Nicholls had said in Majrowski v Guys and St Thomas NHS Trust [2006] UKHL 34 at [30]:
- That gives rise to this problem which I touched on in Judgment No. 2 but did not then have to reach any conclusions on. What happens if the conduct complained of straddles the date of the bankruptcy order? There is no problem if the conduct complained of has stopped before the onset of bankruptcy. That is a wholly past claim and, just like the past claim in Ord v Upton, in my judgment vests in the trustee, assuming it caused financial loss as well as personal loss and so is a hybrid claim.
- There is equally no problem if the conduct complained of all post-dates the bankruptcy. That was the case in the Willoughby proceedings considered in my Judgment No. 2. By the time the matter came before me it had been established that although Mr Willoughby had indeed conducted a campaign from 2002 onwards, that is for a considerable time before Mr Hayes' bankruptcy, he had a defence under section 1(3) until June 2007, a considerable time after Mr Hayes' discharge from bankruptcy. That meant that although acts before June 2007 may have been part of a course of conduct there was in that period no breach of section 1(1) of the 1997 Act. It was therefore clear that the only cause of action Mr Hayes had was one that accrued to him at the earliest after June 2007 and so could not have vested in his trustee in 2005. That was essentially the conclusion I came to in Judgment No. 2. Mr Grant is seeking to appeal that decision but so far without success. I refused permission to appeal, as did Davis LJ on paper on 6 October 2014. I have reconsidered my decision but see no reason to change my views.
- But what of a course of conduct that is partly before and partly after the commencement of bankruptcy? Suppose, for example, it is established that a wrongful course of conduct started in 2003, continued through 2005 when the victim was made bankrupt, and only came to an end in 2007. Does this vest in the trustee or does it remain with the bankrupt or is it split?
- Before considering this question I should set out the current position in the present proceedings. As with other aspects of the litigation between these parties this has a long and tortuous history. I (thankfully) do not have a full account of it but I have seen enough for present purposes. I preface this account with the point that until very recently Mr Grant was not party to these proceedings so when referring to the defendants I am referring to Mr Butters and Mrs Hayes and prima facie Mr Grant was not bound by any of the orders previously made.
- Mr Grant was appointed trustee, as I have said, on 4 June 2013. On 11 July 2013 he applied to be joined to these proceedings as the third defendant and to strike out the claim. On 15 July 2013 HHJ Collender QC, sitting now in the Central London County Court, joined Mr Grant as the third defendant and gave directions for the hearing of this application. On 26 September 2013 HHJ Dight transferred the action to the High Court in an order which as drawn up was dated 31 October 2013.
- With that regrettably lengthy account of some of the applications made in these proceedings it can be seen that the current state of affairs is as follows. Mr Hayes complains of harassment that started in 2003 and continued until at least 2011 therefore straddling the bankruptcy in March 2005. He claims an injunction. He claims damages for distress, upset and anxiety and the effects on his physical and mental health. He has also served a schedule in which he claims to have suffered financial loss dating back to 2003 and continuing to at least 2012, thereby, again, straddling the bankruptcy.
- I have put it in that way as it is not obvious, at any rate to me, to what extent it is now open to him, having regard to the order of District Judge Carr striking out his then unpleaded claim for special damages, to assert any claim for financial loss in these proceedings.
- Mr Sims suggested in the course of his submissions that the effect of District Judge Sethi's order of 21 May 2012 directing him to serve a schedule of financial loss was to permit him to claim financial loss in these proceedings, although he accepted that that was limited to loss suffered after the date of District Judge Carr's order in 2007.
- I do not propose to rule on that submission as it does not directly affect Mr Grant's application and is a matter that, in accordance with HHJ Davies' judgment, will, if these proceedings are not struck out, be determined as one of the issues following a trial on liability, assuming, of course, that the defendants are found liable at all.
- Whether or not it is open to Mr Hayes to pursue that claim in these proceedings however, I accept that he has undoubtedly asserted that the harassment, both before and after the bankruptcy, has caused him financial loss, again both loss before and loss after the bankruptcy. It follows that this case squarely raises the issue I left open in Judgment No. 2, which is the correct characterisation of a course of a conduct in breach of section 1(1) of the 1997 Act which straddles the bankruptcy.
- Mr Wolman's submission is that if a claimant pleads only one course of conduct from 2003 to 2011 that constitutes one cause of action. He also submitted that that cause of action was only complete when the conduct comes to an end. He pointed by way of analogy to the Equality Act 2010 which contains a statutory definition of harassment for the purposes of that Act in section 26 and in section 118 sets out various time limits for bringing the claims, including by section 118(6)(a) a provision that:
- As I understood him, Mr Wolman submitted that when a course of conduct straddled the bankruptcy although there was only one cause of action that fell to be treated, at any rate assuming it caused financial loss before the bankruptcy, as a hybrid claim that vested in the trustee. Hence, in his submission, as Mr Hayes asserted that financial loss had indeed been caused by the defendants' campaign before 2005 it was vested in Mr Grant and, being a single cause of action, only Mr Grant could pursue the claim whether in relation to acts and losses post-dating the bankruptcy or not.
- I do not accept Mr Wolman's submission. As Mr Sims pointed out, if the course of conduct was indeed only a single cause of action it would seem logically to follow that that cause of action was not complete until the course of conduct complained of had come to an end. The conduct complained of by Mr Hayes is not alleged to have come to an end until 2011 and on that basis it would seem that the cause of action was not complete in 2005 when Mr Hayes was made bankrupt. How then could it have vested in the Official Receiver as Mr Hayes' trustee in 2005 when it did not yet exist?
- Mr Sims, however, does not suggest that there is only one cause of action. He submits, picking up a suggestion I made in Judgment No. 2, that once sufficient acts of harassment, necessarily at least two, have taken place and caused damage, whether in the form of anxiety and distress or financial loss or otherwise, the cause of action is complete. If the campaign of harassment continues each fresh act of harassment is a continuation of the tort and gives rise to a new cause of action, at any rate if new damage is caused.
- I accept Mr Sims' submission. As already referred to, a cause of action is, in modern parlance, a set of facts that entitles the claimant to relief. It follows that if it were established that (1) the defendants had committed at least two acts of harassment; (2) that those acts constituted a course of conduct; (3) that those acts were in breach of section 1(1) of the 1997 Act, (or in other words none of the defences or justifications applies); and (4) that the claimant has suffered losses of any sort as a result, this cause of action is complete because this is all that he needs to show to entitle him to relief in the form of damages. To take a simplified case, if a claimant establishes that the defendants are guilty of acts A and B which constitute a course of conduct which they cannot justify and which caused him a loss, and he then becomes bankrupt, in my judgment there is a complete cause of action at the date of the commencement of bankruptcy. If the only loss is personal, that remains vested in the bankrupt. If it includes financial loss, it is a hybrid claim and forms part of his estate vesting in his trustee under Ord v Upton.
- Now suppose the same defendants continue the campaign post the bankruptcy and commit act C which is held to be a continuation of the same course of conduct and that act C causes further distress or other loss. Is this the same cause of action? In my judgment it is not. It may, indeed it probably will, form part of one course of conduct but it is a fresh wrongful act. There are many examples in the law of continuing wrongs. I gave one example in Judgment No. 2, that of a continuing trespass by building a buttress on someone's else's land. Another example which is familiar is a continuing breach of contract, usually by omitting to do something, such as failing to build a wall. The same is true of torts which require damage, except in that case the tort is only continued if fresh damage is suffered. The same is also true of breaches of trust. As far as I am aware, the law treats all such continuing wrongs as accruing afresh, either from day to day where, as in the case of trespass or breach of contract, damage is not of the essence of the action, or as accruing afresh each time new loss is suffered, as in the case of torts where damage is the gist of the action.
- I see no reason to take a different view of the statutory claim under the 1997 Act. In my judgment each further continuation of a course of conduct in breach of section 1(1) gives rise to a fresh cause of action so long as it causes fresh damage within section 3(2) of the Act, that is either anxiety or financial loss or other damage. If, therefore, the claimant has become bankrupt after acts A and B and the cause of action for those acts and the loss they have caused vested in the trustee as a hybrid cause of action, a claim in respect of act C taking place after the bankruptcy, so long as it is (a) a continuation of the course of conduct, (b) wrongful and unjustifiable and hence in breach of section 1(1) and (c) causative of loss or damage, is a claim which in my judgment belongs to the bankrupt and does not vest in his trustee.
- It may be said that this produces a splitting of a claim that is unattractive from a practical point of view. I can see that but since in any event a claim for an injunction is agreed to be unaffected by the bankruptcy the splitting of the claim, or more accurately claims, seems to me to be unavoidable. Quite apart from this, I think the splitting of a claim inexorably follows from the continuing nature of the wrong. To take again the analogy of the buttress built on another's land, if a defendant builds a buttress on the claimant's land in 2003 and the claimant is made bankrupt in 2005 and the land is of that curious nature that it does not itself vest in the trustee, as it may not if it is a tenancy of various types, it seems to me that any claim for damages for trespass pre-bankruptcy will form part of the estate and vest in the trustee as a property claim, but any claim for damages for the continuing trespass post-bankruptcy will not so vest and will remain with the bankrupt.
- Mr Wolman suggested that if one wanted to split up the cause of action in this way it was necessary for the claimant to plead specifically the post-bankruptcy acts relied on and that they constituted a separate course of conduct. I agree with Mr Sims that this is not necessary. A pleading that the defendants have engaged in a campaign from 2003 to 2011 consisting of some 169 separate acts, in my judgment entitles the claimant to prove such of the 169 acts as he can establish and it does not matter whether he only establishes 160 of them or 20 of them so long as he persuades the court that what he has established constitutes a course of conduct that is wrongful and in breach of the Act. See Conn v The Council of the City of Sunderland [2007] EWCA Civ 1492 where the claimant pleaded five events and the Recorder found two proved and that this constituted harassment. There is no suggestion in the judgments of the Court of Appeal that this was not open on the pleadings. Admittedly this is only an authority sub silentio but it accords with the view I have expressed.
- In my judgment, therefore, the suggestion that the entire claim for damages brought by Mr Hayes is vested in Mr Grant, and hence it is an abuse of process for Mr Hayes to pursue it, is wrong.
- That is, strictly speaking, enough to dispose of this application but I will briefly address some of the many other points which have been argued before me.
- First, Mr Sims submitted that even if I were against him on the point I have just decided, I should not strike out the claim because at this stage the facts have not been found and it is impossible for the Court to know whether Mr Hayes in fact had any claim at the date of the bankruptcy or not.
- I agree. The point is this. Mr Butters and Mrs Hayes rely, as have I said, on the defences or justifications under section 1(3) including the justification that what they did was done for the prevention or detection of crime. It is possible, as with the claim in the Willoughby action, that Mr Butters and Mrs Hayes may succeed in making out such a defence for a period of the campaign but not for the entire campaign complained of. In Mr Willoughby's case he established such a defence from the start of the campaign until 2007 but not thereafter. I do not suggest for one moment that this is a likely outcome of the proceedings as I have seen none of the evidence in the underlying action and have no view at all as to where the merits might lie. But suppose, as with Mr Willoughby, that Mr Butters and Mrs Hayes are shown to have engaged in a campaign from 2003 that was justified until 2007 but continued as a wrongful campaign thereafter. It follows from my judgment in the Willoughby case that Mr Hayes would have a claim against them that did not vest in the trustee because it only arose at the earliest in 2007. It cannot be known if this is the case until the facts are found. It illustrates that it cannot be right to strike out Mr Hayes's claim now when on at least one possible view of the facts his claim is in its entirety vested in him and nothing has vested in the trustee.
- Secondly, Mr Wolman submitted that Mr Hayes' acts in bringing the claim was an abuse of process relying on Pickthall v Hill Dickinson [2009] EWCA Civ 543. In that case Mr Pickthall was made bankrupt in 2001. He was discharged from his bankruptcy in 2006. He wanted to bring a claim for professional negligence against his former solicitors but was advised by counsel that that claim had vested in his trustee in bankruptcy, then the Official Receiver, and he needed an assignment before he could sue. Despite that advice he brought proceedings in 2007 without having obtained such an assignment, the limitation period being about to expire. Mann J, giving the leading judgment in the Court of Appeal, held that it was an abuse of process for him to have started proceedings at a time when to his knowledge he did not have the cause of action vested in him, and further refused to permit him to amend to plead the assignment which he had later obtained.
- That seems to me to be an entirely different case. It is not shown that Mr Hayes knew at the time of issuing his proceedings that he did not have a cause of action vested in him. Indeed, for the reasons already given, he did have at least two causes of action, if they are otherwise good ones, namely that for an injunction and that for post-bankruptcy acts causing damage.
- Mr Wolman sought to persuade me that it was an abuse of process for Mr Hayes to pursue a claim where he had not kept the Official Receiver fully informed of the proceedings as he should have done.
- I am not sure that this criticism is made out on the facts. Mr Sims showed me various statements by or on behalf of Mr Hayes to the Official Receiver which include, firstly, a report to the Official Receiver dated 12 April 2005, that is very shortly after the commencement of the bankruptcy, which included a detailed account of the harassment which he claimed to have suffered, the summary, in bold at the beginning of that account, being as follows:
- Included in that account is a statement that:
- It lists as potential defendants for a claim in respect of harassment Mr Willoughby, a Mr Shipperly, Mrs Hayes and Mr Butters, and attached a harassment chronology which included in it at least two incidents where Mr Butters is alleged to have called a Mr Roland Potter and advised him against doing business with Mr Hayes or sought to persuade him not to do business with Mr Hayes.
- That, one would have thought, was a fairly clear indication that Mr Hayes was claiming that he had suffered financial loss as a result of harassment pre-dating the bankruptcy. It was followed, secondly, by a letter of 27 October 2005 from his then solicitors saying:
- To which the response on 1 November 2005 was:
- Then thirdly, in May 2007, Mr Hayes's solicitors wrote to the Official Receiver on 22 May in which, amongst other things, having said that "the question of damages is not at the forefront of our client's mind," they enclosed copies of "a schedule of financial losses Mr Hayes says he (or Nucleus) lost as a result of the harassment (or the abuse of process as now could be pleaded)." That schedule included a statement that:
- It is not necessary however for me to form any final view as to whether Mr Hayes complied with his duties under the Insolvency Act or not. Even if Mr Hayes was keeping the Official Receiver in the dark about his claims, I do not see that this entitles Mr Grant to obtain a strike-out of these proceedings which Mr Hayes has brought against Mr Butters and Mrs Hayes. Whether he has or has not co-operated with the Official Receiver and Mr Grant does not, it seems to me, have any bearing at all on whether he has a good or bad cause of action against Mr Butters and Mrs Hayes or should be permitted to pursue it.
- Mr Wolman further submitted that Mr Hayes needed leave to amend and should be refused permission to amend as a matter of discretion relying on the Pickthall case again. Again I do not accept this submission for reasons already given. Even if some part of the claim is properly vested in Mr Grant, that does not in my judgment prevent Mr Hayes from pursuing any part of the claim which is vested in him. Nor do I think that any amendment is necessary for that purpose. If any amendment had been necessary I see no reason why it should not have been granted. It would not add to the matters due to be heard at the trial on liability. As I said when refusing permission to appeal in the Willoughby case from my Judgment No. 2, one of Mr Hayes' claim is an injunction and:
- Third, I have not understood what interest Mr Grant has in these proceedings in any event. Either Mr Hayes establishes his claim against Mr Butters and Mrs Hayes or he does not. In either case I do not see that it affects the bankruptcy estate. Mr Grant, at any rate until he chose to be joined to these proceedings, was not party to them and was not bound by them and I do not see that he could have been prejudicially affected by them.
- Mr Wolman repeated to me a submission he made in the Willoughby case, that if Mr Hayes is allowed to pursue the claim the cause of action would be merged in the judgment and hence lost to Mr Grant. I rejected that at paragraph [21] of my Judgment No. 2 as follows:
- Mr Wolman says that Mr Grant is privy to Mr Hayes and developed an elaborate submission under which by taking proceedings on a cause of action in fact vested in the trustee Mr Hayes was making himself a trustee de son tort and hence a constructive trustee and hence he and Mr Grant were privies as successor trustees.
- This all seems to me a far too over-elaborate analysis. There might be circumstances where a trustee in bankruptcy wished to take over proceedings brought by a bankrupt and in such circumstances he might find himself bound by decisions in the proceedings which had already been made. But Mr Grant does not suggest he wishes to take over the proceedings but to bring them to an end. I fail to see how a cause of action vested in Mr Grant could be affected one way or the other, let alone destroyed, by proceedings taken by somebody else asserting that cause of action which ex hypothesi was not vested in them.
- As I said in Judgment No. 2 at paragraph [18]:
- Fourth, it seems to me therefore that Mr Grant has as matters stand no proper interest in this action. Having been joined, he might, if he chose to do so, be in a position to apply for leave to serve a statement of case asserting a claim against the defendants in his own right and in effect applying to become co-claimant. I rather doubt if such an application would have any prospects of success. It would be likely to face considerable difficulties not least in terms of limitation. However no such application has been made, and, although Mr Wolman at one stage floated the suggestion that I might do that of my own motion, I decline to do so.
- As matters stand the pleaded issues are between Mr Hayes on the one hand, and Mrs Hayes and Mr Butters on the other. Mr Butters and Mrs Hayes have repeatedly tried to strike out the claim on Ord v Upton grounds and have failed. It seems to me that that is, in any event, a complete answer to this application and that the Court should not strike out a claim brought by Mr Hayes against Mr Butters and Mrs Hayes at the instance of Mr Grant, a stranger to the litigation, when it would not do so at the instance of the defendants themselves.
- I was shown Mulkerrins v Price Waterhouse Coopers [2003] UKHL 4781. There Miss Mulkerrins was made bankrupt in August 1995. She sued PWC for professional negligence leading to her bankruptcy. There was then a disagreement between her and her trustee as to which of them the claim was vested in. That was resolved by a district judge on an ordinary application in insolvency proceedings in favour of Miss Mulkerrins. Her trustee did not appeal. When she then sued PWC, PWC applied to strike the claim out on the ground that the claim was properly vested in the trustee. The House of Lords held that that failed, it having been resolved as between Miss Mulkerrins and the trustee that the cause of action was vested in her. The defendant was stuck with that even though he was not party to those proceedings.
- The present case seems to me, however, to be rather the converse of that case. Here it has already been resolved in the present proceedings that Mr Butters and Mrs Hayes' attempts to strike out the claim in its entirety on Ord v Upton grounds has failed. Though Mr Grant is not a party to the proceedings, and, as I have said, he is free in my view to start his own proceedings if he wishes, I do not see that he has any right to intervene in these proceedings and go behind what has already been resolved as between the parties who are litigating the claim.
- Fifth, and finally, Mr Sims said that Mr Grant's application was itself an abuse of process, being an attempt by Mr Butters and Mrs Hayes, through the agency of Mr Grant, to have yet another go at striking out the claim they having failed four times already. It is a fact that Mr Grant, who I believe was appointed at the instance of Mrs Hayes, is being funded in terms of his legal fees by Mrs Hayes for these proceedings and his own time (he is an experienced insolvency practitioner). She has also agreed to indemnify him against any costs order made in the course of this litigation. He is also represented by Mr Wolman, who has previously appeared both for Mr Willoughby and for Mrs Hayes, at least in the proceedings before me which led to Judgment No. 1. Mr Grant has entered into an agreement with Mr Butters and Mrs Hayes which, in very brief terms, provides that if the applications to strike out succeed they will partially waive any limitation defence and make a bid for the claim. As I made clear in argument, I am not prepared to assume that Mr Grant is acting in any other than what he conceives to be, with the benefit of advice, the best interests of the bankruptcy estate, but it does appear likely that he has been put up to make this application by Mr Butters and Mrs Hayes who, having come to the end of the road in their own attempts to strike out the litigation, have now persuaded and funded Mr Grant to do it for them.
- Had it been necessary to form any final view on this, I would have wanted to consider this point in much greater detail as I am concerned, as I suspect every judge that has seen this case has been concerned, at the costs and time spent in repeated applications rather than getting on with the trial. As it is, however, I do not have to form any view on this because for reasons that I have already given I will dismiss this application in any event. Subject to any submissions to the contrary from counsel, I will retransfer the litigation to the county court for trial on liability, expressing the hope, although sadly not the expectation, that the parties can devote their energies to the trial of this claim rather than taking up time with any more attempts to disrupt it.
MR JUSTICE NUGEE:
"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."
"(1) Subsection (1) or (1A) [which does not apply in this case] does not apply to a course of conduct if the person who pursued it shows --
(a) that it was pursued for the purpose of preventing or detecting crime
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
In this case I was told by Mr Butters that his defence relies on each of these three possible defences and indeed also on a fourth defence which I need not detail.
"3(1) 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.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss from the harassment."
There are then further provisions.
"Where --
(a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,
the plaintiff may apply for the issue of a warrant for the arrest of the defendant."
That subsection plainly envisages that a person who apprehends a breach of section 1(1) and who may be the victim of that course of conduct may apply for, and the Court may grant, an injunction restraining the defendant from pursuing any conduct which amounts to harassment.
"References to harassing a person include alarming the person or causing the person distress."
"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."
It then continues to deal with section 1(1A).
"... simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."
See Letang v Cooper [1965] 1 QB 232 at 242 per Diplock LJ.
"The bankrupt's estate shall vest in the trustee immediately on his appointment taking effect, or, in the case of the official receiver, on his becoming trustee."
"Subject as follows, a bankrupt's estate for the purposes of any of this Group of Parts comprises --
(a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy ..."
Then it continues to subsection (b) to which it is not necessary to refer.
"'property' includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property."
"Things in action" is not further defined but there is no doubt that it includes claims which can only be realised by bringing proceedings.
"The property which vests in the trustee includes 'things in action': see section 436. Despite the breadth of this definition, there are certain causes of action personal to the bankrupt which do not vest in his trustee. These include cases in which 'the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property': (see Beckham v Dale (1849) 2 HL Cas 579, 604, per Erle J and Wilson v United Counties Bank Limited [1920] AC 102. Actions for defamation and assault are obvious examples. The bankruptcy does not affect his ability to litigate such claims."
"The general principle [that all rights of the bankrupt pass to the creditors] ... is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law."
"It certainly has been established by a series of authorities, ending with the case of Rogers v Spence (1846) 12 CL & Fin 700 in this House that no action can be maintained either by an executor or by an assignee to recover damages for bodily or mental sufferings or personal inconvenience sustained by the deceased or by the bankrupt". ...
"Rights of action for breach of promise to marry, for torts to the person, for libel or slander, are instances of exceptions to the general rule".
"A cause of action can be defined as every fact which is material to be proved to entitle a party to succeed and every fact which a defendant would have a right to traverse. In that sense two actions could be pleaded to recover separately the two heads of damage, but, as was pointed out in Stock the existence of different heads of damage does not, in modern litigation, give rise to two different causes of action. In my view it would be not right in modern times to say that two causes of action arose in Wilson. There was but one which founded claims giving a right to two different heads of damage."
The reference to Wilson is to Wilson v United Counties Bank Limited, a case where a bankrupt, Major Wilson, and his trustee in bankruptcy had jointly sued the bank. At the trial the jury awarded damages in favour of the trustee for losses occasioned to Major Wilson's estate of about £45,000 and for injury caused to Major Wilson's personal reputation of £7,500.
"It follows that Mr Ord should retain the right to the damages for pain and suffering and the right to the damages for past and future earnings vested in the trustee. That leaves the question of how those rights are to be enforced. I believe that when there is but one cause of action which includes a head of damage relating to property, then the cause of action vests in the trustee as it does not fall within an exception to the general rule. If so, the right to recover the damages which are personal and any damages recovered are held on a constructive trust for the bankrupt by the trustee."
"The cause of action is for negligence. He [that is Mr Ord] seeks compensation for the damage done to him by the negligent acts. That compensation is assessed under a number of heads, one of which relates to past and future loss of earnings. That as pointed out by Warren J [which is a reference to a judge in the Supreme Court of British Colombia] will be a sum of money to compensate him for damage to his earning capacity.
The authorities are only consistent with the conclusion that the trustee is entitled to the damages for past and future loss of earnings and is not entitled to the damages for pain and suffering. As there is a single cause of action, it vested in the trustee. There is in my view nothing in that conclusion which imposes practical difficulties with which the law cannot deal. The trustee as constructive trustee would have to account to the bankrupt for the property which he obtained inadvertently or by arrangement in an action which vested in him for the benefit of the creditors."
"References to a person in the context of harassment of a person are references to a person who is an individual."
"None of this reasoning answers the present question, but all of it in our view tends to place on the non-vesting side of the line a claim which is primarily directed at the restoration of a contractual relationship in which the claimant's skill and labour are the essential commodity. There is nothing frivolous in Mr Mulholland's question whether the Official Receiver could seriously seek reinstatement in Ms Grady's former job -- for that is the principal remedy claimed in these proceedings which are said to have become his, and the first remedy which the tribunal is required by law to explore."
Like the claim for an injunction in this case, it is difficult to envisage that claim being pursued by the trustee for the benefit of the creditors. I do not read the decision in Grady v HM Prison Service as in any way qualifying the decision in Ord v Upton.
"In my view the plaintiffs' causes of action are proprietary in nature and even if, as I am prepared to accept, the causes of action give rise to heads of damages under both the personal and proprietary categories the action is to that extent hybrid and comes within the principle enunciated in Ord v Upton and is therefore to be treated as a thing in action. That being so, all of the first plaintiff's claims vest in the trustee."
He did not deal separately with the harassment claim but as can be seen from that citation he held that the Ord v Upton principle applied to all the claims, which must therefore include the harassment claim.
"I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made."
He then gives some examples:
"Nonetheless the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct."
"... I emphasise, in the light of the submissions, that Lord Nicholls's reference to misconduct is a reference to the offending course of misconduct. He is not suggesting that each individual act constituting the course of conduct must be of sufficient gravity to be a crime in itself. Such an analysis would seriously undermine the purpose and effectiveness of the Act. It would add little to the sequence of offences already committed and would fail to deal with a serious and common aspect of harassment which is the repetition of acts which singularly would be inoffensive and not really troubling but which become harassment on repetition."
(1) The claim, as I have already referred to, was started in the Queen's Bench Division of the High Court on 28 November 2005, the claim at that stage seeking an injunction and damages which were unspecified, save for the general reference in paragraph 3 which I have already read, to the harassment having alarmed Mr Hayes and his wife and caused them injury, anxiety, distress and psychological harm.
Paragraph 4 cross-referred to the particulars of conduct as set out in the statement of Mr Hayes served with the claim form. These were set out in a document headed "harassment chronology" where Mr Hayes had listed 49 separate incidents, the earliest of which was a phone call from Mr Butters in February 2003, and which continue up until 28 July 2005. Of those the first 29 I think pre-date the bankruptcy on 23 March 2005 and the remaining 20 post-date it.
(2) The next relevant development was a hearing before District Judge Carr on 3 December 2007 by which time the claim had evidently been transferred to the Watford County Court. The defendants had applied to strike out the proceedings on the grounds of want of prosecution and abuse of process based on a supposed estoppel. District Judge Carr rejected both those applications, but in the course of the hearing Mr Butters raised the Ord v Upton point and District Judge Carr dealt with that point in his judgment as follows:
"11. But it does not quite end there and we had a discussion about this this morning. That is because Mr Hayes is a bankrupt and because he was an undischarged bankrupt at the date of the issue of these proceedings it seemed to me, and I think ultimately Mr Hayes agrees, that insofar as his claim is a claim for special damages for actual losses resulting from the alleged wrong committed against him by the defendants, that is a claim that was and remains vested in the Official Receiver. By his letter of 1 November 2005 he confirmed that he had no objection to the court proceedings but that letter could not have extended to consenting to a claim for special damages but the claim by Mr Hayes is in two parts, the second part being a personal claim that he can bring under the Act simply asking for an injunction and damages which is not vested in the OR. It is only the claim for special damages that cannot proceed against these defendants because of his bankrupt status.
12. Put shortly, I must strike out this claim. It is not actually pleaded separately so we will have to come up with some words that make it clear that Mr Hayes cannot pursue a claim for special damages against the defendants but nothing in the order prevents him from pursuing his claim firstly for an injunction and secondly for general damages, both of which are personal remedies which seem to me not to impact on the bankruptcy at all and must therefore be covered by the letter, or were intended to be covered by the letter of 1 November 2005."
He therefore made an order, which as drawn up is dated 11 December 2007, paragraph 2 of which reads:
"The claimant's claim for special damages against the defendant is struck out."
At the same time he made an order in paragraph 5 that:
"The issues of liability [which he set out] be tried as a preliminary issue and [subject to] further order herein are limited to those issues only, namely:
5.1 Whether the defendants or either of them has harassed the claimant at all and if so what actions or incidents amount to a course of conduct within the meaning of the Protection from Harassment Act 1997 and sound in damages."
That order was not appealed. That was therefore the first occasion on which the defendants had raised the Ord v Upton point and the Court made the order to which I have referred evidently taking the view, rightly or wrongly, that the claim partly vested in the trustee but partly remained vested with Mr Hayes. The Court therefore did not strike out the proceedings altogether.
(3) The next relevant development was an application dated 21 February 2011 by the defendants to strike out the entire claim on the basis of Ord v Upton. That was therefore the defendants' second application to strike out on this basis. That came before District Judge Rhodes on 28 February 2011. I have not seen either his order or his judgment but HHJ Davies recites in her judgment of 23 November 2012, referred to below, that he dismissed the application to strike out.
One would have thought that two unsuccessful attempts to strike out on this basis might have resolved the point, at any rate between Mr Butters and Mrs Hayes on the one hand, and Mr Hayes on the other, but as we shall see that was not the end of it.
(4) The next relevant development is that on 23 June 2011 District Judge Rhodes gave Mr Hayes permission to amend his statement of case and directed a trial, optimistically fixed for a window between November 2011 and January 2012, to be a trial on liability alone.
(5) Mr Hayes did amend his statement of case. He did so by replacing his brief particulars of claim with a rather longer statement of case dated 8 July 2011 and by updating his harassment chronology with an addendum. The addendum lists a further 120 incidents of which all but the first post-date the bankruptcy and which continued up to a date in March 2011. Paragraph 18 of the particulars of claim as so replaced pleads loss and damage as follows:
"By reason of the harassment the claimant has suffered the following loss and damage:
a) The claimant and Margaret Hayes have been distressed, upset and suffered anxiety [I should say that Margaret Hayes is the claimant's current wife].
b) The health of the claimant has been adversely affected by the unrelenting stress such as to cause and/or exacerbate raised blood pressure, hypertension and neurological defects causing weakness in his lower limbs.
19. Full particulars of the claimant's losses including medical evidence will be served following determination of the issue of liability."
It can be seen that no claim for special damages for financial loss is there pleaded or even hinted at.
(6) The next development was a third application by the defendants to strike out on the basis, inter alia, of Ord v Upton dated 8 May 2012. HHJ Davies comments in her judgment that the defendants' witness statement in support:
"gave a brief history of the case and referred in paragraph 8 to the arguments that this was a hybrid case so that under the case of Ord v Upton the claim vested in the Official Receiver, the Official Receiver had not given permission to commence or continue the claim, the claim was unlawful and the claimant had no legal standing to bring this claim The wording of that paragraph is almost identical to the statement made in the February 2011 application, which had of course been dismissed. There is no reference in that statement to the order of February 2011. "
That came before District Judge Rhodes on, I believe, 23 July 2012. He made an order, which as drawn up is dated 30 July 2012, paragraph 1 of which provides as follows:
"The Court having already determined the issue of whether this claim should be struck out as vesting in the claimant's trustee in bankruptcy in the claimant's favour, the defendants' application to strike out the claim is dismissed."
(7) In the meantime, there had been a hearing before District Judge Sethi for directions on 17 May 2012. In the course of that hearing the defendants had asked the district judge to direct Mr Hayes to serve a schedule of financial loss. He acceded to that request and by his order, which as drawn up is dated 21 May 2012, he ordered:
"1. There be no further amendments to the statement of case by both parties save as follows (a) the claimant do file at court and serve the defendants with a schedule of financial loss, if any, by 4.00 p.m. on 31 May 2012, failing which the claimant be debarred from relying on any financial loss."
That seems a paradoxical thing for the defendants to have done as by the order of District Judge Carr Mr Hayes, one would have thought, was at that stage precluded from relying on financial loss. Nevertheless Mr Hayes, unsurprisingly, complied with the order and served a schedule of financial loss on 31 May 2012. It is headed "claimant's schedule of financial loss" and in the introduction it says:
"This schedule is filed and served further to the order of District Judge Sethi dated 17 May 2012. The above order also provided for the claim to be set down for a trial within a trial window between 3 September 2012 and 30 November 2012 on liability only. The claimant if successful on liability will seek directions as to filing of medical and other evidence in support of these losses. This draft schedule of loss is submitted subject to but without prejudice to the findings of the court and the claimant will seek permission to update and amend this schedule at a later date."
It alleges in paragraph 1 a substantial past loss of income quantified at over £570,000 including an allegation that by reason of the harassment of the first and/or second defendant the claimant's income from Nucleus, that is a software business which the claimant previously controlled, ceased in 2003. The loss of income was claimed to last from 2003 to 2012. There are also various other heads of financial loss, including the loss of certain property, future loss of income, future medical treatment costs and various other matters.
(8) On 7 August 2012 the defendants issued yet another, that is a fourth, application to strike out the claim inter alia on the basis of Ord v Upton. That came before HHJ Kay QC in the Luton County Court on 16 August 2012. Unsurprisingly by his order, which as drawn up is dated 29 August 2012, he dismissed that application.
(9) The next development was that the defendants sought permission to appeal the decision of District Judge Rhodes in July 2012 dismissing their third application to strike out. That came before Her Honour Judge Davies on 23 November 2012. She refused permission to appeal and for good measure went on to consider the merits. She said this in her judgment at paragraphs [35] and [36]:
"35. It is clear to me that there is a real legal argument that may at some point become relevant. This case needs to be heard in full. It is quite inappropriate for this matter to be struck out at a preliminary hearing on a preliminary basis. I am satisfied it would not save any costs if this was dealt with at a preliminary stage as this matter is case managed and timetabled to trial yet again and now for seven days.
36. On the basis that this would be the third or fourth attempt to strike out the case on the same basis I would have refused the application to strike out."
By her order, which as drawn up is dated 21 December 2012, which incidentally was not before me but was in some papers that were before me on one of the other applications, she ordered as follows:
"2. The application for permission to appeal the decision of District Judge Rhodes dated 23 July 2012 is dismissed on the basis that there is no prospect of the appeal succeeding.
3. In the event that the appeal had proceeded, such appeal is dismissed on the basis that the decision was within the generous ambit of a district judge's discretion and was not procedurally flawed or unjust.
4. In the event that the application to strike out the claim was reheard such application is dismissed on the basis that the appropriate time to consider the application to the nature of the claim being a 'hybrid' claim is to the dealt with at the conclusion of the hearing of the issue of liability.
...
9. The matter is to be set down for trial for seven days."
Then dates are given for trial in May and June 2013.
(10) The defendants sought to appeal that decision to the High Court. That came before Proudman J on paper on 11 February 2013. Again, the order was not included in the application before me, but was included in other papers which I have. She refused permission to appeal. She characterised the appeal as wholly without merit. In her brief reasons she said:
"Paragraph 1 of the order which it is sought to appeal falls with paragraph 2. The issue on the appeal is res judicata and the appellants cannot keep trying different routes to appeal/strike out the claim."
That forms the background to the present application.
"For the purposes of this section --
(a) conduct extending over a period is to be treated as done at the end of the period."
I do not find that particular statutory provision of any assistance. It is plainly dealing only with the limitation point and does not, I think, contain any real guide to the general law.
"Had it not been for the acts of the petitioning creditor [that is Mrs Hayes] and others which are described herein personal insolvency would have been entirely unnecessary as will be seen. The petitioning creditor has for the past two years actively supported a campaign by former employees of the business to prevent me and my wife from earning money that could have been used to pay or challenge her debt."
"The actions to harass myself and my family taken by MJW [that is Mr Willoughby], CLH [that is Mrs Hayes] and GB [that is Mr Butters] include many written and telephone contacts with business associates."
"Mr Hayes has instructed us to take court proceedings for an injunction and/or damages against certain individuals under the Protection from Harassment Act. We therefore give notice of our intention to issue High Court proceedings within the next few days. Should you have any objection please let us know."
"The Official Receiver has no objection in relation to Mr Hayes' court proceedings."
"I blame all of my loss of earnings on the continued harassment from Mr Butters and the bankruptcy falsely caused by Mrs Carol Hayes. I estimate 15 months' loss of earnings to March 2006"
thereby putting the Official Receiver clearly on notice that Mr Hayes claimed to have suffered financial loss as a result of the harassment both before the bankruptcy and continuing during the bankruptcy. Incidentally it was that letter which, as I understand it, caused Mr Wolman to drop a point which he had previously raised on behalf of Mr Grant to the effect that Mr Grant had served a notice under section 307 of the Insolvency Act 1986 seeking to claim for the bankrupt estate after acquired property, namely any damage suffered during the period between the commencement of bankruptcy and the discharge. That notice was objected to by Mr Hayes on the grounds that it was served more than 42 days after knowledge accrued to the Official Receiver of the claim. When I made some comments in argument based on that schedule of financial loss and the letter in May 2007 Mr Wolman decided not to pursue that particular point which explains why all that is currently asserted to be vested in the trustee is the claim for loss up to the date of commencement of bankruptcy.
"Once it is accepted that the claim for an injunction is vested in Mr Hayes and not Mr Grant, it is a matter for Mr Hayes what facts he relies on in support of his claim that he has a well-founded apprehension of future harassment. It matters not that a separate claim for damages for some of that harassment may or may not have been vested in someone else, he was plainly entitled to put the whole history of Mr Willoughby's campaign before the Court to establish why he apprehends future harassment."
In the same way even if an amendment confining any claim to damages for post-bankruptcy acts causing post-bankruptcy damage was made, it would have no effect at all on Mr Hayes' right to lead evidence of a campaign dating back to 2003. It therefore would have no practical impact on the conduct of the proceedings.
"I have also not understood Mr Grant's concern as expressed in the pleading that the merger of Mr Hayes' cause of action in the judgment has in some way prevented him from bringing a claim. That seems to me simply wrong. Mr Wolman referred me to statements as to merger in a judgment in Clerk and Lindsell at 31-14 which says that:
"when an action is brought before an English tribunal of competent jurisdiction and proceeds to final judgment the original right of action is destroyed. The original cause of action is terminated by its merger in the judgment. So whether the claim has succeeded or failed he cannot bring the same action against the same party. The judgment is binding and conclusive upon the parties to the action and their privies unless the second action is brought in respect of a different right."
That, it seems to me, has the effect that Mr Hayes' cause of action against Mr Willoughby has been merged in the judgment and he could not sue Mr Willoughby again. It does not affect Mr Grant insofar as there is a cause of action vested in him (or was). Mr Grant is not a party to the Cambridge proceedings and he is not a privy to the Cambridge proceedings and he is not affected by anything that has taken place in them. So I do not find that the merger, which has undoubtedly taken place of Mr Hayes' cause of action in the judgment, is one which prejudicially affects Mr Grant in any way."
I have reconsidered my views but I see no reason to change the views that I expressed there.
"Mr Grant is not a party to that action and he is not privy to that action. Nothing decided in that action affects him at all. It reminds open, or would but for the limitation period having expired remain open, to Mr Grant to start proceedings against Mr Willoughby and seek to establish in those proceedings that in fact HHJ Moloney had reached an erroneous conclusion on the facts and that the campaign of harassment which dated back to 2002 had not been justified up until 2007 at all. I say nothing about the other difficulties in him establishing that but in legal theory if he were able to prove that that were the case the mere fact that Mr Hayes had failed to prove that in proceedings to which Mr Grant was not a party would not prevent Mr Grant from pursuing such a claim. As I say, such a claim would now appear to be statute-barred in any event but that does not affect the principle of the matter."
The same in my judgment applies here. If Mr Grant thinks he has a claim he can bring it against Mrs Hayes and Mr Butters. The fact that Mr Hayes has already brought a claim against them does not seem to me in principle either here or there. Of course now such a claim is likely to be statute barred and I say nothing about Mr Grant's position now that he has on his own application been joined to these proceedings. But that is something that he has done of his own volition, and, at any rate until he was joined, he was in my judgment quite unaffected by the proceedings brought by Mr Hayes.