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Cite as: [2009] EWHC 907 (QB)

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		Neutral Citation Number: [2009] EWHC 907 (QB)
		Case No: 8MA90951 and others

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

Manchester Civil Justice Centre

30th April 2009

B e f o r e :

MR JUSTICE COULSON
____________________

Between:

	BRUCE DOWSON	Claimant
	- and -
	8 Linked Claims
	And THE CHIEF CONSTABLE OF NORTHUMBRIA POLICE	Defendant

____________________

Mr Simon Cheetham (instructed by RALLI, Solicitors ) for the Claimants
Mr Ian Skelt (instructed by Director of Legal Services, Northumbria Police) for the Defendant
Hearing Dates: 7th and 8th April 2009
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Coulson :

PART I: INTRODUCTORY MATTERS

1. Background

These proceedings consist of nine linked claims by various police officers bought against the Chief Constable of Northumbria Police pursuant to the Protection From Harassment Act 1997 ("the 1997 Act"). The allegations centre largely upon the conduct of one officer, Detective Chief Inspector Pallas, in 2002 and 2003. It is said that the Defendant is vicariously liable for the conduct of DCI Pallas, and that his conduct amounted to harassment of his junior officers.

Two separate sets of interlocutory applications came before me on 7^th and 8^th April 2009. The first, dealt with in Part II of this Judgment, concerned a raft of different amendments to the Particulars of Claim, made by each of the nine Claimants, to which objection is taken by the Defendant. The second set of interlocutory applications comprises the Defendant's application to strike out and/or for summary judgment against three specific claimants: Detective Constable Bloomfield, Detective Constable Combe, and Detective Constable Miller. The three strike out/summary judgment applications are dealt with in Part III of this Judgment. There is a brief summary of my conclusions in Part IV (paragraphs 100-102 below).

2. The Central Features Of The Proceedings

The central features of these proceedings can be illustrated by reference to the lead claim, that of Detective Inspector Dowson. The claim was issued in July 2008. In it, complaints were made about DCI Pallas and his effect on Crime Team North ("CTN"), the police team to which all of the nine Claimants belonged. It is alleged (paragraph 6 of the Dowson Particulars of Claim, as amended) that "through a combination of his aggressive manner and his use of inappropriate and - at times - unlawful policing techniques, DCI Pallas rapidly caused problems in what had previously been a cohesive team. DI Dowson was directly bullied by DCI Pallas and was also required to act in an unprofessional and unlawful way. When he complained, he was removed from CTN. As a result, he has suffered severe stress, loss of status and loss of income and benefits."

In the case of DI Dowson, the pleaded particulars of harassment deal with a series of events in 2002 and 2003, covering at least two police operations, namely Operation Bobbin and Operation Halogen. In relation to the latter Operation, there are allegations concerning the treatment of a suspect by the name of Davie who was released and then, on DCI Pallas's instruction, re-arrested and re-interviewed. There are specific allegations as to the unlawful nature of the second interview which, so it is said, placed DI Dowson under pressure and to feel harassed. These allegations are repeated in a variety of permutations in the other eight sets of Particulars of Claim. In the case of DI Dowson, however, there are other allegations of bullying (such as his exclusion by DCI Pallas from important meetings and other matters of this kind) which are not found in all the other claims.

The Particulars of Claim advanced by DI Dowson allege that, following the difficulties with DCI Pallas, DI Dowson received negative appraisals and his subsequent career in the police suffered as a result. These allegations, in one way or another, feature in each of the nine separate claims now made arising out of the conduct of DCI Pallas, for which it is said that the Defendant was vicariously liable.

There can be no doubt that these claims are somewhat unusual. They do not seem to me to fall within what might be considered as the mainstream of harassment claims. As pleaded, they arise out of an alleged clash between the personality and methods of DCI Pallas, and those of the team which he took over. Many of the pleaded problems seem to stem from genuine differences of opinion as to how particular investigations were to be conducted, which would not, at first blush, appear to be capable of amounting to harassment of the other officers involved. Even more importantly for present purposes, it appears that some (but not all) of the particulars of harassment arise tangentially rather than directly. In other words, the criticisms of DCI Pallas's conduct often concern his approach to routine police work: the interviewing of suspects, disclosing documents, handling covert intelligence, and so on, rather than acts or statements aimed directly at his junior officers. These parts of the pleaded claim appear to present the conduct of the investigations as resulting, almost as a by-product, in the alleged harassment of the officers with whom DCI Pallas worked on the relevant operations.

PART II: THE AMENDMENTS

3. The Order Of 22.12.08

At a Case Management Conference on 22^nd December 2008, before HHJ Holman in Manchester, the Claimants were given permission to make amendments to their respective Particulars of Claim. At the time that the order was made, no draft amendments had in fact been formulated, but it appears that the judge's order was not controversial, because the Claimants had indicated that the amendments were of the 'tidying-up' variety, and stemmed exclusively from the further information that had been made available by the Claimants to their respective psychiatrists. On that basis, the Defendant had not objected to the order.

Unhappily, when the nine sets of amended Particulars of Claim were provided, the amendments went some considerable way beyond that which had been anticipated. Although Mr Skelt, on behalf of the Defendant, did not object to all of the amendments, he objected to some of them, on the ground that they introduced new courses of action outside the limitation period. In those circumstances, I made it plain to Mr Cheetham, on behalf of the Claimants, that he could not simply rely on the permission granted by HHJ Holman in advance of the formulation of the amendments, and that the controversial amendments would have to be dealt with de novo.

4. Applicable Principles On Amendment

CPR 17.1(2) gives the court a wide discretion to grant permission to a claimant amend its statement of case. That power is subject to CPR 17.4, which deals with amendments following expiry of the relevant period of limitation. In such circumstances, pursuant to CPR 17.4(2):

"The court may allow an amendment whose effect would be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."

The general rule (that is to say, when the amendments arise before trial and do not give rise to limitation difficulties) is that such amendments will usually be allowed. The statement of principle was set out in the judgment of Peter Gibson LJ in Cobbold v Greenwich LBC August 9^th 1999, unreported, BAILII: [1999] EWCA Civ 2074 :

"The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general should be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed".

In accordance with this principle, I consider that in the present case, save where the amendments give rise to a limitation difficulty, the amendments to the nine Particulars of Claim ought to be permitted, with the Claimants paying the costs of and occasioned by the amendments, which is the usual order as to costs on amendment.

Reverting then to CPR 17.4, the first question is whether the disputed amendment involves the addition of a new claim. If it does not (because, say, it is merely adding further particulars to a claim or cause of action already pleaded), the court has a discretion to allow the amendment and, subject to costs, will usually do so. If, on the other hand, the amendment does add a new cause of action, the next question is whether it arises out of the same facts or substantially the same facts as those already pleaded. Again, if the answer is that it does arise out of the same or substantially the same facts as those already pleaded, then the court may tend towards granting the amendment, although wider considerations of prejudice (including the consequences of allowing a new claim which is otherwise statute-barred) may be relevant. If it is a new claim which does not arise out of the same or substantially the same facts, however, the court has no discretion and may not allow the amendment: see Hoescht UK Limited v Inland Revenue Commisioners [2003] EWHC 1002 (Ch); and Aldi Stores Limited v Holmes Buildings PLC [2003] EWCA Civ 1882.

There are a large number of cases concerned with the proper way to analyse, first, the existence of a new claim and, secondly, whether such new claim arises out of the same or substantially the same facts as those already pleaded. Since each case turns on its own facts, some examples of the courts' approach will suffice to illustrate where the boundaries lie:

a) An allegation of negligence against an architect in the design of a building arose out of the same or substantially the same facts as an allegation of negligence against him in respect of the supervision of the construction of the same building, so that even if it added a new cause of action, such an amendment would be allowed: Brookfield Properties Limited v Newton [1971] 1 WLR 862;

b) An amendment to add a case in fraud outside the limitation period, where previously the allegation was put only in negligence, would not be allowed: see Paragon Finance PLC v Thakerar and Co [1999] 1 All ER 400;

c) An amendment outside the limitation period against solicitors alleging a failure to advise was permitted, where the original allegation was simply that the solicitors had acted without or in disregard of instructions: see Senior v Pearson and Ward [2001] EWCA Civ 229;

d) Amendments which do not raise a new cause of action, but merely raise new instances or particulars of causes of action already pleaded, will be permitted: see Savings and Investments Bank Limited (in Liquidation) v Fincken [2003] EWCA Civ 1630;

e) New allegations of professional negligence relating to a period earlier than that originally pleaded amounted to a new cause of action but, in Chantrey Vellacott v Convergence Group Plc [2000] EWCA Civ 290, the Court of Appeal ruled that the new allegations arose out of the same or substantially the same facts as those already pleaded, so that permission to amend was granted.

The court has to consider the proposed amendments by reference to the over-riding objective (CPR 1.1), to maintain a balance between the desirability of an adjudication on all the issues, and the need to ensure that late amendments do not cause irredeemable prejudice to the recipient. It is important not to take too legalistic an approach, particularly in circumstances such as these, where many of the Particulars of Claim allege a considerable number of different events. The court should seek to avoid hobbling the trial process by interlocutory rulings to the effect that conduct at a meeting on one day can be legitimately the subject of evidence, whilst evidence about conduct at a meeting on the next day must be excluded because it was only raised after the limitation period had expired. That, so it seems to me, would give rise to a real risk of unfairness and injustice.

In addition, whilst it will often be a question of fact and degree, I do not accept the proposition that each alleged incident of harassment necessarily gives rise to a separate claim or cause of action. Harassment arises out of a course of conduct. If a course of conduct has originally been pleaded, and by way of amendment a claimant seeks to add one or two other factual events said to be part of that course of conduct, then those amendments may not themselves give rise to a separate claim. Depending on the precise nature of the amendments, they may constitute further particulars of a claim which has already been pleaded (as per Savings and Investment Bank Limited). Alternatively, even if the amendment does raise a new claim or cause of action, if it is similar in nature, chronology and effect to matters already in issue, it may well be found to arise out of the same or substantially the same facts and matters as those already pleaded, as per Brookfield and Chantrey Vellocott.

5. The Controversial Amendments

The proposed amendments by the three Claimants whose claims are the subject of the striking out/summary judgment application, namely DC Bloomfield, DC Combe and DC Miller, are not the subject of objection. Those amendments are therefore allowed subject to the usual terms and costs. The same is also true of the amendments proposed by DC Dixon, which are similarly allowed on the usual order as to costs. In relation to the amendments proposed by DI Dowson, DC Thompson, DS Hoggins, Inspector Dunn and DS Stewart, only the amendments noted below are the subject of objection by the Defendant. Accordingly, all other amendments proposed by these five Claimants are similarly allowed, again subject to the usual order as to costs.

The Defendant's complaint about the amendments dealt with below is that they seek to raise new claims or causes of action outside the limitation period, and do not arise out of the same facts as those currently pleaded. The Defendant has properly taken as a cut-off date for limitation purposes the date of late January/early February 2003, that being 6 years before the amended pleadings were provided by the Claimants to the Defendant. Accordingly, the Defendant objects to all amendments raising matters prior to late January/early February 2003. I deal with each of the controversial amendments briefly below.

a) DI Dowson

The existing claim by DI Dowson contains specific criticisms of the conduct of DCI Pallas from July 2002 onwards. There is an existing pleading in which DI Dowson's conduct of meetings from this time on was criticised by DCI Pallas. There are also a variety of existing allegations concerning DI Dowson's involvement in Operation Bobbin and Operation Halogen and DCI Pallas' conduct towards him in connection with those operations.

The Defendant's objections to the proposed amendments to Dowson's Particulars of Claim (in common with all their other objections) are based on the proposition that all allegations dealing with events prior to late January/early February 2003 are statute-barred and should not be permitted. With respect to Mr Skelt, I consider that such an approach is too simplistic, because it does not properly address whether or not the new allegations amount to a new claim and, even if they do, whether they can be said to arise out of the same or substantially the same facts as those claims already pleaded. In my view, for the reasons outlined below, I consider that, save for the proposed amendment to paragraph 27, the proposed amendments to the Dowson Particulars of Claim are not new claims. Furthermore, if I am wrong about that, and they are new claims then, again save for paragraph 27, I am in no doubt at all that they arise out of the same or substantially the same facts and matters as those already pleaded.

Paragraphs 13 and 15 of the proposed amendments raise further allegations concerning DCI Pallas's conduct during Operation Bobbin which, as noted above, forms part of the originally pleaded case. These additional incidents should be regarded as further particulars of existing allegations, particularly the general allegation at paragraph 11 of the original claim concerned with DI Dowson's Intelligence Meetings. Similarly, paragraph 23 of the proposed amendments, which is concerned with an event in October 2002 in respect of Operation Halogen and the arrest of Davie, simply provides further particulars of the original complaints of harassment arising out of these events. The same comment also applies to the proposed amendments at paragraph 24. Each of these amendments will be allowed.

Paragraph 27 of the proposed amendments is different. It reads:

"On 22^nd July 2002, only a few days after DCI Pallas arrived at CTN, DI Dowson received a negative PDR (appraisal) entry from DCI Pallas questioning his grading of his Sergeants. This entry directly contravened PDR guidelines as this matter had never been discussed prior to the entry being made and was subject of disagreement. DI Dowson was alarmed and distressed by this entry."

This is an entirely new allegation, raised well outside the limitation period. There is no part of the original pleading concerned with DI Dowson's grading of his Sergeants, and/or DCI Pallas's alleged harassment of him in connection with his grading or his appraisal. To the extent that this is said to amount to harassment, it therefore seems to me to be a new claim which does not arise out of the same or similar facts to those already pleaded. Moreover, I am bound to say that I struggle to see how this can be a proper allegation of breach of the 1997 Act in any event.

For all these reasons, therefore, I conclude that paragraph 27 of the proposed amendments to the Dowson Particulars of Claim, unlike all the others, raises a new claim, which is statute-barred, and which does not arise out of the same or substantially the same facts as those already pleaded. I therefore disallow the proposed amendment to paragraph 27.

The final paragraph to which objection is taken is paragraph 30. This alleges that DI Dowson was excluded from a meeting on 6^th January 2003. However, whether or not this is a new claim, it seems to me that this arises out of the same or substantially the same facts as those already pleaded. It is already part of the pleaded case that, just the following month, on 11^th February 2003, DI Dowson filed a grievance complaining about his treatment by DCI Pallas. That grievance and that complaint must have been linked to the exclusion of DI Dowson from the meetings on both 6^th January 2003 and the meeting on 5^th February 2003 (paragraph 31), a new allegation to which no objection can be taken because it is just within time. In those circumstances it would be entirely artificial not to allow the allegation in relation to the meeting on the 6^th January 2003 to form part of the pleaded case. It arises from the facts already pleaded.

Accordingly, I allow all of the proposed amendments to the Particulars of Claim made by DI Dowson, with the exception of the amended paragraph 27 which, for the reasons set out in paragraphs 20 and 21 above, I disallow.

b) DC Thompson

The Defendant's only objection to the proposed amendments by DC Thompson concerned paragraph 20 of his Particulars of Claim: it was said that this was a new cause of action arising outside the limitation period.

The original claim brought by DC Thompson covered the period between the middle of 2002 and late 2003 and referred to DCI Pallas's alleged harassment of him, in particular in relation to DC Thompson's role as a dedicated Covert Human Intelligence Source (CHIS) Handler. Paragraph 20 now alleges that, in a meeting in July 2002, DCI Pallas described the use of a particular CHIS as being "an agent provocateur" and it is alleged that "as the CHIS Handler this further undermined DC Thompson's role." I am again bound to note that, on the face of it, this seems a somewhat thin allegation of harassment, but that is not the basis of the Defendant's objection.

On the limitation issue, which is the only reason for the objection, it seems to me that this allegation arises out of the same or similar facts to those already pleaded. The whole of DC Thompson's case is based on DCI Pallas's alleged harassment of him as he sought to fulfil his role as CHIS Handler. The addition of this further comment at the meeting in July 2002 is not a separate claim or cause of action and, because it arises out of the same facts as those already pleaded, it is well within the court's discretion to allow it. I do so. Accordingly, all of the amendments proposed by DC Thompson, including paragraph 20, are allowed, subject to the usual order as to costs.

c) DS Hoggins

The claim by DS Hoggins again concerns Operation Halogen and DS Hoggins' role as Disclosure Officer. Again, the pleading is based four-square on the conduct of DCI Pallas. The only proposed amendment to which objection is taken is paragraph 11, which is in these terms:

"DS Hoggins also became aware that his notes were being examined without his knowledge by person(s) unknown. DS Hoggins reported the matter to Professional Standards, as he felt that the operation in which he was involved might be compromised as a result."

It seems to me that this is entirely a matter of factual background and therefore a legitimate amendment. It is not said to be, and in this form could not be, a particular of harassment. It is not pleaded as being any part of a case of harassment against the Defendant. It is background material only, and on that basis, I allow the amendment. Thus all the amendments proposed by DS Hoggins are allowed, subject to the usual order as to costs.

d) Inspector Dunn

The claim made by Inspector Dunn, as originally pleaded, referred in particular to DCI Pallas's conduct in relation to Operation Halogen and the interview of Davie. Although the proposed amendments to his Particulars of Claim at paragraphs 9-13 and 15-18 are extensive, I am in no doubt that they seek to provide further particulars of DCI Pallas's alleged harassment of Inspector Dunn in connection with this investigation. Inspector Dunn - in common with many of the other Claimants - appears to believe that he was harassed by DCI Pallas as a result of the decision to re-arrest and re-interview Davie. In circumstances where, so I am told, Davie was subsequently convicted of a criminal offence, I consider it curious that this conduct can now be said to give rise to harassment under the 1997 Act. Be that as it may, that is the allegation at the heart of the original claim.

These amendments, although extensive, do no more than provide particulars of precisely what conduct on the part of DCI Pallas relating to these events is now the subject of complaint. Although they relate to events in October 2002, they do not amount to a new claim or new cause of action; even if they did, they arise from the same or substantially the same facts as those already pleaded. The events concerning the original release and subsequent re-arrest of Davie are already pleaded. These new amendments provide further particulars of those events and should therefore be allowed.

Accordingly, I consider that I ought to allow all of the proposed amendments made by Inspector Dunn to his Particulars of Claim, subject to the usual order as to costs.

e) DS Stewart

DS Stewart's claim, as originally pleaded, also concerns Operation Halogen and the events involving Davie. The Defendant only objected to two paragraphs within the proposed amendments: 19 and 23.

The proposed amendment to paragraph 23, which originally referred to DS Stewart's formal grievance procedure, adds the assertion that DS Stewart was distressed at the lack of any proper investigation of his grievance by an officer in Northumbria Police. It is said that this constituted harassment. The objection is taken on limitation grounds, because this allegation appeared to relate to events in October/November 2002. However, since the grievance itself is originally pleaded, this new assertion cannot amount to more than further particulars of the consequences of that grievance procedure. The limitation objection is therefore unsustainable.

Although the point was not made by Mr Skelt, I am unhappy with paragraph 23 in its present form for an entirely different reason. It does not seem to me to be a proper allegation of harassment. I consider that, if DS Stewart wishes to pursue this allegation, he needs to say who should have carried out the investigation and when; what would have happened if there had been such an investigation; and how and why the absence of an investigation constituted harassment. He also needs to say if this conduct has any link to or connection with the conduct of DCI Pallas which forms the principal thrust of the claim and, if so, how and why. If those particulars are provided then, depending on their precise formulation, I would probably be prepared to allow this amendment.

That leaves paragraph 19 of the proposed amendments on the part of DS Stewart. That reads as follows:

"In respect of a court appearance regarding an investigation of a corrupt police officer, DCI Pallas was critical of the charge that had been applied on CPS advice and blamed DS Stewart in his office beforehand. The corrupt police officer was remanded in custody and the Head of Professional Standards congratulated DS Stewart. DCI Pallas continued to criticise DS Stewart for adhering to CPS advice and lawful police practice. He found this experience demoralising and offensive."

Although it is not expressly identified, it appears that this event took place in October/November 2002 and is therefore out of time.

This allegation is not mirrored in any other part of DS Stewart's existing claim; indeed, it is not mirrored in any of the claims made by the other eight Claimants in these proceedings. It is an entirely new allegation. It does not bear any relationship to or connection with any other allegation made against the Defendant. It is also extremely vague and unclear: no particulars are given of what the charge was, what DCI Pallas said that the charge should be; or how and why DCI Pallas' conduct (which, as pleaded, amounts to no more than a disagreement between DCI Pallas and the CPS) could be said to amount to harassment of DS Stewart. There is no suggestion that the conduct was targeted at DS Stewart.

In all those circumstances, therefore, it seems to me that I ought not to allow the proposed amendment at paragraph 19 of DS Stewart's Particulars of Claim. It appears to be an entirely new claim which has been raised for the first time outside the limitation period. It does not arise out of the same or substantially the same facts as those already pleaded. It is not properly pleaded in any event. In those circumstances, I do not give permission for this new paragraph.

6. Summary On Amendments

Accordingly, for the reasons set out above, I grant the Claimants permission to make all the amendments proposed save for:

a) Paragraph 27 of the Particulars of Claim advanced by DI Dowson;

b) Paragraph 19 of the Particulars of Claim advanced by DS Stewart.

In addition, DS Stewart must give particulars of the allegation at paragraph 23 of the proposed amendments to his Particulars of Claim before permission to make that amendment can be granted. The respective Claimants must pay the costs of and occasioned by all of the proposed amendments.

PART 3: STRIKING OUT/SUMMARY JUDGMENT

7. Applicable Principles/Striking Out And Summary Judgment

CPR 3.4. permits the striking out of a statement of case if it appears to the court "that the statement of case discloses no reasonable grounds for bringing or defending the claim." In considering an application for striking out under this rule, the court should assume that the claim is genuine and serious, and also assume that the claimant will successfully prove the pleaded facts and matters relied on: see Palmer v Tees Health Authority [2000] PNLR 87.

Statements of case which are suitable for striking out include those which raise an unwinnable case, where continuance of the proceedings is without any possible benefit and would waste resources on both sides: see Harris v Bolt Burden [2000] CPRep 70. An application to strike out on this ground should not be granted unless the court is certain that the claim is bound to fail: see Hughes v Colin Richards and Co [2004] EWCA Civ 266.

In addition, CPR 24.2 allows a defendant to seek summary judgment against a claimant if it can show that the claimant has no real prospect of succeeding on the claim. It has been held that this means that the court must disregard prospects of success which are false, fanciful or imaginary. Inclusion of the word "real" means that the claimant must have a case which is better than merely arguable: see ED and F Mann Liquids Limited v Patel [2003] EWCA Civ 472.

In Swain v Hillman [2001] 1 All ER 91, Lord Woolf emphasised that the proper disposal of an issue under CPR Part 24 should not involve the court conducting a mini-trial, although there are times when this is easier said than done. But the difference in approach is simple enough in principle: at the subsequent trial, what matters is which case is proved on the balance of probabilities, whilst under CPR 24 the criterion "is not one of probability; it is absence of reality": see the speech of Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England No.3 [2001] 2 All ER 513.

In summary, the party making the application - in this case, the Defendant - has the burden of establishing the necessary test. He must show in relation to the claims which are the subject of these applications that the three Claimants (Bloomfield, Combe and Miller) have no real prospect of successfully establishing their claims.

8. Applicable Principles/Harassment

a) The Protection From Harassment Act 1997

The relevant parts of the 1997 Act for present purposes are as follows:

"1. (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 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) Sub-section (1) does not apply to a course of conduct if the person who pursued it shows-

a) that it was pursued for the purpose for preventing or protecting crime…

2. (1) A person who pursues the course of conduct in breach of section 1 is guilty of an offence…

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 resulting from the harassment…"

In addition, section 7(2) makes plain that what amounts to harassing a person "includes alarming the person or causing the person distress", while section 7(3) makes plain that a course of conduct "must involve conduct on at least two occasions."

b) Gravity

There have been a number of cases in which the courts have emphasised that, in order to amount to harassment, because of the equivalent criminal offence in Section 2(1), the conduct in question must be of appropriate gravity. In Majrowski v Guys and St Thomas's NHS Trust [2006] UKHL 34, Lord Nicholls of Birkenhead said:

"Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the 'close connection' test. Where the claim meets that requirement, and 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 even 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 must sustain criminal liability under section 2."

c) Context

The courts have also emphasised the importance of the context in which the conduct occurred when considering whether or not it was of appropriate gravity to trigger a liability under the 1997 Act. In Conn v Sunderland City Council [2007] EWCA Civ 1492, Gage LJ said that what crossed the boundary referred to by Lord Nicholls "may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or the barrack room might well be harassment in the hospital ward and vice versa". He went on to say that "the touchstone of recognising what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law." The importance of context has recently been emphasised by Arden LJ in Allen v London Borough of Southwark [2008] EWCA Civ 1478.

d) 'Targeted'/Calculated

The authorities are clear that the conduct said to constitute harassment within the meaning of the 1997 Act must be targeted at the claimant: see, for example, paragraph 14b) of the judgment of Owen J in Helen Green v DBG Group Services (UK) Ltd [2006] EWHC 1898 (QB). In Thomas v News Group Newspapers Ltd [2002] EMLR 4, Lord Phillips said that harassment described conduct "targeted at an individual which is calculated to produce the consequences described in section 7 [of the 1997 Act] and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct." In that case, the Court of Appeal concluded that the Claimant had pleaded an arguable case of harassment.

e) Vicarious Liability

There is no dispute between the parties that an employer is liable for the conduct of an employee, if the conduct of that employee amounted to harassment, and the acts complained of were within the scope of that person's employment: see Majrowski. But I consider that Mr Skelt was right to say that the relevant conduct must be committed by an individual, whose course of conduct might give rise to a criminal charge. In other words, in the present case, even though the Defendant is vicariously liable for the conduct of DCI Pallas, and that of the other officers mentioned, the Claimants need to demonstrate that the conduct which is said to amount to harassment was either that of DCI Pallas or some other officer who was acting in concert with DCI Pallas, or under his instructions. Thus, if the conduct of any other officer is said to constitute harassment (and there has been a half-hearted attempt, in the amendments, to widen the focus of the allegations beyond DCI Pallas) then, in order for the court to conclude that there was a relevant course of conduct, there needs to be a pleaded link between the conduct of the other officer and DCI Pallas. Two random acts by two different officers, at different times, with no pleaded connection or link between them, cannot amount to a course of conduct on the part of an individual necessary to trigger a liability under the 1997 Act.

f) Two Recent Cases

There have been two recent cases in the Court of Appeal concerned with the application of the 1997 Act. In Allen, referred to above, the Court of Appeal allowed an appeal against the decision of the county court judge to strike out a claim under the 1997 Act. The harassment was said to arise out of a series of possession proceedings instituted by the Council landlord against the claimant tenant. There were five separate sets of proceedings, even though the council's officers knew that, at least by the conclusion of the third set of proceedings, the possession action was hopeless. Arden LJ dealt with the difficulty of considering the Council's explanations at an interlocutory stage:

"…the position on this appeal is that I do not consider that it is appropriate for this court, an appellate court, to deal with a question of what amounts to harassment for the purposes of this appeal merely on the basis of the counsel's explanation as to what happened or ought to be inferred as having happened or being known by Southwark. If Southwark wishes to put forward an explanation then it must seek permission of the trial court to put in evidence, and Mr Allen who appears in person on this appeal, must have the opportunity of considering that evidence and his response to it."

Similarly, in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, the Court of Appeal upheld the judge at first instance who had refused to strike out a harassment claim based upon a lengthy series of misconceived gas bills and threatening letters. The threatening letters included the threat to report the claimant, who was not even a customer of British Gas, to credit rating agencies. Jacob LJ said:

"17. I accept that a course of conduct must be grave before the offence or tort of harassment is proved. And that, as Mr Porter accepted after some discussion, the only real difference between the crime of s.2 and the tort of s.3 is standard of proof. To prove the civil wrong of harassment it is necessary to prove the case on the balance of probabilities, to prove the crime, the standard is the usual criminal one of beyond a reasonable doubt.

18. In so accepting I would just add this word of caution: the fact of parallel criminal and civil liability is not generally, outside the particular context of harassment, of particular significance in considering civil liability. There are a number of other civil wrongs which are also crimes. Perhaps most common would be breaches of the Trade Descriptions Act 1968 as amended. In the field of intellectual property both trade mark and copyright infringement, and the common law tort of passing off (which generally involves deception) may well amount to crimes. It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognised, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene."

Mr Cheetham appeared to rely on these two recent authorities to suggest that there had been a watering down of the requirement for conduct of particular gravity in order to amount to harassment under the 1997 Act. I do not accept that submission. It is plain from both the 1997 Act itself, and the subsequent cases, that conduct must be more than merely unreasonable to qualify as harassment. It must be 'genuinely offensive', 'oppressive', and 'unacceptable'. It must be capable of constituting a criminal offence. Neither Allen nor Ferguson seem to me to suggest anything different. And whilst the factual background to both those cases could, sadly, be categorised as mundane - a series of computer-generated threatening letters from a large organisation, and inept local authority possession proceedings - the facts in both cases were, on closer examination, relatively extreme. In Allen, there were five sets of proceedings, at least two of which were plainly and obviously doomed to fail, but which were commenced by the Council anyway. And in Ferguson, notwithstanding the Claimant's repeated attempts to put a stop to the endless flow of bills and threatening letters, these were ignored. They are both examples of what Jacob LJ called "one of the glories of this country, that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry." The individual results, therefore, should not be regarded as either surprising or in some way contrary to the general principles set down in the cases such as Majrowski, Conn and Thomas.

g) Summary

There are, it seems to me, five principles to be drawn from the reported cases which are of particular relevance to the striking-out application before me:

a) It is incumbent on the claimant on his pleading to allege conduct which is arguably unreasonable: see Gray J in Sharma v Jay [2003] EWHC 1230, cited with approval by Longmore LJ in Allen;

b) "The mere fact that the conduct complained of has foreseeably caused distress to an individual is not enough; the requirement to establish an arguable case of oppression and unreasonableness must also be satisfied if the claim is not to be struck out": again, see Gray J in Sharma, cited with approval by Longmore LJ in Allen at paragraph 8 of his judgment;

c) There must be a genuinely offensive and oppressive course of conduct, in which the context may well be important (Conn). "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": Baroness Hale in Majrowski, paragraph 66 of her speech.

d) The conduct must be targeted at the claimant (see Helen Green and Thomas).

e) The conduct must be calculated to produce alarm and distress on the part of the claimant (even if, as per Majrowski, no alarm or distress were in fact caused).

There are as yet no reported cases on the exception at section 1(3)(a) of the 1997 Act (the exclusion where the conduct complained of was pursued for the purposes of preventing or detecting crime). All of the present cases involve police officers, and the allegations arise largely out of named operations, so it was said by Mr Skelt that this exception must apply. In the absence of specific authority, I would conclude that:

a) The mere fact that harassment arises in the context of preventing or detecting crime will not, without more, trigger the exception, because otherwise the 1997 Act could not apply to the police force at all;

b) If the defendant wishes to rely on the exclusion, he or she would need to demonstrate that the course of conduct at the heart of the alleged harassment was specifically pursued for the purposes of crime prevention or detection. In most cases, it seems to me that that would require particular evidence which explained why the conduct complained of was necessary for crime prevention/detection.

c) Thus, as a general rule, it would not be appropriate to strike out claims on the basis of this exception prior to hearing such evidence, for the same reasons explained, in a different context, by Arden LJ in Allen (see paragraph 49 above).

I should also say this. In Majrowski, Lord Nicholls said that courts should be "astute" to strike out claims where the conduct complained of plainly did not cross the line between unattractive/unreasonable behaviour and conduct which was oppressive. A review of the results in the cases noted above might be thought to demonstrate something of a reluctance to take that course. Thus, in Majrowski, the claim was struck out at first instance but re-instated by a majority in the Court of Appeal, whose decision was upheld by the House of Lords. In Thomas the claim was not struck out at first instance and that decision was upheld in the Court of Appeal. In Allen, the claim was struck out at first instance, but the Court of Appeal allowed the claim to be re-instated. Finally, in Ferguson, the claim was not struck out at first instance and that decision was upheld in the Court of Appeal.

9. General Observations About The Three Claims

Before turning to consider each of the three claims, and to analyse whether or not they disclose a real prospect of success, I should make some general observations about the particular claims of DC Bloomfield, DC Combe and DC Miller.

I have already made the point at paragraph 6 above that the harassment claims in these proceedings might all be regarded as somewhat unusual, for the reasons there set out. Furthermore, I am in no doubt that these three claims are, on the face of it, the weakest of the nine. For example, I note that DI Dowson's claim is based on a wide variety of events which took place over a relatively lengthy period. By contrast, the claims of DC Bloomfield, DC Combe and DC Miller rely upon a very narrow factual matrix. In all the circumstances, I am unsurprised that the Defendant seeks to limit his striking-out application to these three claims.

This leads on to a related point, also touched on in paragraph 6 above. The pleaded complaints made by these three officers might be regarded as stemming from genuine differences of view as to how particular police operations were to be carried out. On analysis, many of the allegations focus upon the nature of the police investigations themselves, with the alleged harassment of the officers involved arising tangentially, as a by-product of the way in which the investigations were carried out.

The final general point to make is this. Despite the results in other harassment/strike out cases summarised in paragraph 54 above, the court must scrutinise the claims carefully to see if they are 'worth the candle': see (in the context of defamation claims) the judgment of Lord Phillips in Jameel v Dow Jones [2005] QB 946. It is not, in my judgment, appropriate for the court at first instance to say: "Well, these claims look very thin to me, but is safer not to strike them out until there has been some (expensive) evidence." One of the main purposes of the Civil Procedure Rules, and in particular CPR 3.4 and CPR 24.2 (as Lord Nicholls pointed out in Majrowski, and Lord Phillips stressed in Jameel), is to ensure that claims which do not have a real prospect of success are weeded out at the earliest possible stage.

For these reasons, I have general concerns about the prospects of success in respect of the claims advanced by DC Bloomfield, DC Combe and DC Miller in these proceedings. With that in mind, I therefore turn to the individual pleaded allegations in those claims, and the points made by Mr Skelt about them.

10. The Claim By DC Bloomfield

a) Pleaded Allegations

The principal matter which is pleaded as constituting harassment in DC Bloomfield's claim is the interview of Davie in about October 2002 (see paragraphs 8-12 of the Particulars of Claim). The complaint is that DCI Pallas instructed DC Bloomfield to carry out the interview in an unlawful manner which, so it is said, "amounted to harassment of DC Bloomfield and caused him alarm and distress". It appears that DCI Pallas wrote words, including 'sneak' and 'cheat', on the interview notes to be used by DC Bloomfield. At Davie's trial it appears that, as a result of points arising out of these notes, the judge ordered that DC Bloomfield be interviewed by the Professional Standards department of the police service (paragraph 19 of the Particulars of Claim).

The only other matters identified in the amended Particulars of Claim concern the consequences of DI Dowson's grievance procedure and DC Bloomfield's subsequent transfer out of CTN (paragraphs 14-17). Paragraphs 20-22 of the Particulars of Claim are a summary and contain no new events or allegations.

b) DCI Pallas

It is important to stress that the only person/individual identified as responsible for conduct said to constitute harassment is DCI Pallas. The amended Particulars of Claim do not allege that any other officer harassed DC Bloomfield. In addition, although the involvement of other officers is referred to, it is not said that this formed any part of a course of conduct instigated by or linked to the conduct of DCI Pallas. Everything of significance is said to arise from his conduct. I therefore accept Mr Skelt's submission that, in the case of DC Bloomfield, what matters is the alleged conduct of DCI Pallas.

c) Course of Conduct

As noted above, in order for a harassment claim to get off the ground, there needs to be a course of conduct said to constitute harassment. That itself requires a minimum of two separate occasions on which relevant conduct occurred (see section 7(3) of the 1997 Act)

On a proper analysis of DC Bloomfield's amended Particulars of Claim, no such course of conduct is made out. The conduct, about which complaint is made in considerable detail, concerns DCI Pallas's instructions to DC Bloomfield in connection with the interview of Davie. No other event or occurrence is identified as constituting the necessary course of conduct. Although complaint is made about the fact that DC Bloomfield had to be interviewed by Professional Standards, such conduct cannot possibly amount to harassment, since it was ordered by the trial judge and was in any event the result of the interview notes. And the decision to move DC Bloomfield from CTN was taken by other officers, and it is not said that that decision formed part of a concerted or linked course of conduct amounting to harassment and emanating from DCI Pallas.

Accordingly, it seems to me that (unlike, say, the amended Particulars of Claim advanced by DI Dowson, which covers a wide variety of different events and occasions), the claim advanced by DC Bloomfield has an insuperable problem. It is not based on a course of conduct; it does not identify at least two separate occasions on which the alleged harassment took place. The whole claim is built around the allegedly unlawful interview of Davie which, so it is said, took place on and in accordance with DCI Pallas's instructions. One event - one instance of oppressive conduct - cannot amount to actionable harassment. I therefore conclude that the harassment claim as pleaded on behalf of DC Bloomfield will fail.

d) Gravity

Mr Skelt submitted that, even assuming that DC Bloomfield proved every pleaded allegation, the conduct complained of was neither oppressive nor unreasonable. He pointed out that, although the pleading asserted that the re-arrest of Davey was unlawful, there was nothing to demonstrate that it was in fact unlawful. Moreover, although there were clearly problems in the manner in which the interview was conducted (as evidenced by the interview required by the trail judge), Mr Skelt points out that Davie was subsequently charged with criminal offences arising from the matters discussed in that very interview, and that he was subsequently convicted of those offences. Accordingly, he argues, the conduct alleged falls far short of the gravity required of conduct amounting to harassment.

It seems to me that there is considerable force in these submissions. There is certainly nothing on the pleadings to demonstrate that the mere fact that Davie was re-arrested and interviewed was somehow unlawful; indeed, the fact that Davie was subsequently convicted of criminal offences arising out of the matters discussed in the interview points in the opposite direction. And although it is clear that the manner in which the interview was conducted was problematic, and on the face of the pleadings that was the responsibility of DCI Pallas, it is impossible to conclude that such a situation amounted to oppressive conduct against DC Bloomfield. On the contrary, it seems to me that there was a difference between DC Bloomfield and DCI Pallas as to how the interview should be conducted, and DC Bloomfield may well have been right that DCI Pallas's instructions were inappropriate. But it seems to me that this is far short of the necessary gravity required for harassment under the 1997 Act.

For these reasons, whilst it seems to me that DCI Pallas's conduct, on the face of the pleadings, may well have been inappropriate and unfair to Davie, there is nothing on the face of the pleadings that demonstrates that this conduct was of the necessary gravity to warrant a criminal or civil charge of harassment as against DC Bloomfield. That, therefore, is a second reason why, in my judgment, DC Bloomfield's pleaded claim is bound to fail.

e) 'Targeted'

At paragraph 47 above, I have identified the need for the conduct said to amount to harassment to be targeted at the claimant. Can it fairly be said that, in this case, the alleged conduct was targeted at DC Bloomfield? It seems to me that it plainly was not; if it was targeted at anyone it was targeted at Davie. This is very different to the complaints made, for instance, by DI Dowson about being kept out of meetings and openly criticised in others. That was plainly conduct targeted at him. But here, the conduct was plainly targeted at Davie; DC Bloomfield was simply the instrument by which this conduct was to be carried out. He was not the target. Nor is it suggested that the conduct was calculated to cause DC Bloomfield alarm or distress.

Accordingly, I am persuaded that the claim as pleaded demonstrates that the conduct in question was not targeted at DC Bloomfield, nor was it calculated to cause him alarm or distress. That is the third reason why, in my judgment, his claim as pleaded must fail.

f) Contradictory Evidence

Finally, in relation to the claim now made by DC Bloomfield, a signed statement has been drawn to my attention dated 7^th October 2005. The statement, signed by DC Bloomfield, was part of an internal police investigation into Operation Halogen and it dealt, in particular, with the events surrounding the re-arrest of Davie. He dealt in detail with DCI Pallas's notes on his interview notes with Davie and concluded:

"I felt Bob Pallas was not asking me to do anything illegal. Although I was aware of what DS Steve Dunn had said I was not arresting Davie so it was not my decision… I have related my contact with Detective Chief Inspector Bob Pallas because I have been asked. I personally have no grievance against Mr Pallas".