KING'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
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(1) CLYDE & CO LLP (2) MR JULIAN RICHARD BERRYMAN SMART |
Claimants |
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- and – |
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MR CHRISTOPHER KENNEDY |
Defendant |
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Mr Christopher Kennedy appeared in person
Hearing dates: 11 and 12 March 2025
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Crown Copyright ©
Her Honour Judge Carmel Wall:
Introduction
The Law
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.
(1A) A person must not pursue a course of conduct —
(a)which involves harassment of two or more persons, and
(b)which he knows or ought to know involves harassment of those persons, and
(c)by which he intends to persuade any person (whether or not one of those mentioned above)—
(i)not to do something that he is entitled or required to do, or
(ii)to do something that he is not under any obligation to do.
(2)For the purposes of this section or section 2A(2)(c), 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 harassment of the other.
(3)Subsection (1) or (1A) 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.
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.
(3) Where—
(a)in such proceedings the High Court or the 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.
3A Injunctions to protect persons from harassment within section 1(1A)
(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person ("the relevant person").
(2) In such a case—
(a)any person who is or may be a victim of the course of conduct in question, or
(b)any person who is or may be a person falling within section 1(1A)(c),
may apply to the High Court or the county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.
(3) Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a).
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
(b)in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons.
(3A) A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another—
(a)to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and
(b)to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.
(4) "Conduct" includes speech.
(5) References to a person, in the context of the harassment of a person, are references to a person who is an individual.
Conduct which may begin with what is or may be a legitimate inquiry may become harassment within the meaning of Section 1 of the 1997 Act by reason of the manner of its being pursued and its persistence.
The issues
a. What conduct on the part of the defendant have the claimant(s) proved?
b. Does that amount to a "course of conduct" as defined by the Act?
c. Does it involve "harassment" of the requisite number of people?
d. Have the claimant(s) proved that the defendant knew or ought to have known that his conduct involved harassment, by reference to whether a reasonable person in possession of the information would think the course of conduct amounted to harassment?
e. Has the first claimant additionally proved that the defendant's conduct was intended to persuade the first claimant to act or omit to act as described in s1(1A)(c)?
f. Has the defendant proved that s1(1) should be disapplied?
g. Should an injunction be granted and if so, on what terms?
Procedural issues
Evidence
The hearsay evidence
Anonymous source
Authenticity
Reliability
4. Considerations relevant to weighing of hearsay evidence.
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2)Regard may be had, in particular, to the following—
(a)whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c)whether the evidence involves multiple hearsay;
(d)whether any person involved had any motive to conceal or misrepresent matters;
(e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f)whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
The oral evidence
The Facts
Contextual background
The professional negligence claim
The MIB claims
The defendant's visits to the Birmingham office and other conduct
Summary
Is this a course of conduct?
Does it involve harassment?
Have the claimant(s) proved that the defendant knew or ought to have known that his conduct involved harassment?
Has the first claimant additionally proved that the defendant's conduct was intended to persuade the first claimant to act or omit to act as described in s1(1A)(c)?
Q: Your aim was to persuade Clyde & Co to procure HDI to pay out in the JRB claim.
A: The solicitors' firm advised me to plead guilty. Clyde & Co should persuade its client to plead guilty. They have a legal obligation to advise HDI and JRB to pay. They have a duty to make the MIB pay because they owe me a fiduciary duty.
Q: Clyde & Co was under no obligation to procure or advise HDI to make any payment
A: They were because once you see the documents there's no fingerprints. They [JRB] are bang to rights.
Has the defendant proved that s1(1) of the Act should be disapplied?
Should an injunction be granted and if so, on what terms?
Outcome