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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Levi & Anor v Bates & Ors [2015] EWCA Civ 206 (12 March 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/206.html Cite as: [2015] 3 WLR 769, [2016] 1 All ER 625, [2015] 2 Cr App R 19, [2015] EMLR 22, [2015] WLR(D) 119, [2016] QB 91, [2015] EWCA Civ 206 |
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ON APPEAL FROM LEEDS COUNTY COURT
His Honour Judge Gosnell
1LS50081
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RYDER
and
LORD JUSTICE BRIGGS
____________________
(1) MELVYN LEVI (2) CAROLE LEVI |
Appellants |
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- and - |
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(1) KENNETH BATES (2) LEEDS UNITED FOOTBALL CLUB LIMITED (3) YORKSHIRE RADIO LIMITED |
Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the APPELLANTS
MR JACOB DEAN (instructed by CARTER RUCK) for the FIRST RESPONDENT
Attended by BRANDSMITHS for the SECOND RESPONDENT
The THIRD RESPONDENT did not appear and was not represented
Hearing date : 18th February 2015
____________________
Crown Copyright ©
Lord Justice Briggs :
"They are not targeted at her (Mrs. Levi) but she is affected by it both out of concern for her husband and in this example out of concern for her own safety too."
B may, furthermore, be more vulnerable than A to being harmed by the relevant course of conduct, so much so that she may be harmed while A has the fortitude simply to shrug it off.
The Facts
" 7 The allegations of harassment
There are a number of allegations of harassment pleaded by the Claimants. The fact that the particular words were used is not disputed by the Defendants as they are mainly recorded in documents. It is fair to say that the Defendants deny that the words used are capable of amounting to harassment and have a number of other technical arguments in respect of the same which I will deal with later. I will accordingly set out all the allegations of harassment made by the Claimants so that in due course I can decide whether any or each of them are capable of amounting to harassment. Where I have set out an article written by the First Defendant this is an extract from his column in the match programme unless stipulated otherwise:
a) In an article entitled "This is The Story Behind the Recent Headlines" published in the programme on 25th September 2006 the First Defendant claimed that the First Claimant was claiming that he "was going to get the club back". He also stated that the First Claimant and another were acting like a "pair of money grabbing spivs".
b) In an article entitled "Making Steady Progress But There is Still A Long Way to Go" published in the programme on 28th September 2005 the First Defendant wrote " we are saving Melvyn Levi's free tickets which reduces our attendance by 3". He concluded the article: "on a final note, what exactly was Melvyn Levi's involvement in the Bramley League Club? I hear all sorts of stories and understand that their ground is now covered in housing. How did that come about?"
c) In an article entitled "Just to Bring You Up To Speed" published in the programme on 17th October 2006 the First Defendant called the First Claimant a "shyster" and claimed the First Claimant was trying to blackmail him. This was the first of the successful defamatory allegations.
d) In an article entitled "The Enemy Within" published in the programme on 3rd March 2007 the First Defendant wrote that the First Claimant's father must be "turning in his grave at his antics". The First Defendant wrote that the First Claimant's demands were "little short of blackmail"; that his behaviour was "totally scurrilous"; and described the First Claimant's behaviour as unpleasant and dishonourable. The First Defendant suggested that readers should put questions to the First Claimant to justify his behaviour, publishing the Claimants' home address. This was the second of the successful defamatory allegations.
e) In an article entitled "Why Mr Levi Why" published in the programme on 10th March 2007 the First Defendant accused the First Claimant of trying to frighten off would-be investors and trying to blackmail him personally into paying the First Claimant money to go away. The First Defendant wrote: "Thanks Melvyn. By the way, you do know that your phone number is in the book don't you". This last sentence was blanked out in most programmes but the Claimants allege that it could still be read clearly from both the front and behind the page. The phone number was clearly that of both Claimants. This was the third successful defamatory article.
f) In an article entitled "Progress on Many Fronts" published in the programme on 11th April 2008 the First Defendant wrote "we have now decided to refer the matter [the Yorkshire Consortium's running of the club] to the appropriate authorities and call for a full investigation into the circumstances surrounding the original takeover of Leeds United …..PS On Wednesday I received a telephone call from Charlie Sale, a sport gossip columnist at a daily tabloid. He had received a phone call from Melvyn Levi, anxious to tell about his forthcoming libel action against me which will be heard in the High Court in June. This should be hilarious. Levi will be asked to explain the allegation that Roman Abramovich has blacklisted me with English banks. All documented of course. Don't miss the Melvyn Levi Comedy Show in the High Court available across all the British Media, including Yorkshire Radio". It is the Claimants` case that the matter was not referred to the appropriate authorities and no documents have been produced to support the fact that the First Claimant made these allegations against the First Defendant.
g) On 21st December 2010 a process server employed by a company instructed by the Second Defendant's Jersey lawyers attempted to personally serve the First Claimant with court papers at his home. At the time of his visit only the Second Claimant was present and so service was not effected. The First and Second Defendants were aware that the Claimants` solicitors were Ford and Warren of Leeds and service could have been arranged through them. The Claimants allege that the decision to attempt personal service at the Claimant's home without warning was a further act of harassment.
h) On 26th December 2010 Leeds United were playing Leicester City away and the match was being broadcast live by the Third Defendant. During the match two announcements were made. The first at around 1420 said :
"Leeds United are currently searching for the whereabouts of Melvyn Levy to serve him some papers in relation to a High Court action in Jersey. Now , if you've seen the former Leeds United director , you're being asked to get in touch with Yorkshire Radio and let us know where and when you saw him"
The message was substantially repeated again at 1605 hours. It emerged quite late in the trial that a similar message had been broadcast three times on 22nd and at least once on23rd December 2010.
i) In an article entitled "Onwards and Upwards" published in the programme on 1st January 2011 the First Defendant wrote:
"On another topic, after five years, we have issued a writ against Robert Weston in Jersey. We are claiming that he personally misappropriated £190,400 of season ticket holder's money in May 2005.
In parallel we have issued a writ against Melvyn Levy (a former Leeds United director) on grounds that he aided and abetted Weston. As I write, we have not served Mr Levi with his writ as his wife said he was away until New Year which makes me speculate as to why they split for the festive season. No matter, the procedure will be processed in 2011.Watch this space for continuing exciting news of a saga which will soon challenge Coronation Street as a long running soap"
j) In an article entitled "Our Destiny is in Our Hands" published on 2nd April 2011 the First Defendant wrote as follows:
"We had a good week in the courts ……In a separate case we are suing Robert Weston and Melvyn Levy personally in respect of matters pertaining to the Admatch affair in the Jersey High Court and we expect the matter to be heard in the next twelve months …we will stick to the facts and hopefully win through on all counts, reclaim our costs and teach the Defendants a lesson"
Although the Defendants deny that his article constitutes harassment they admit it was published in breach of a contractual undertaking given in these proceedings not to publish matters concerning the First Claimant without giving at least seven day's notice to his solicitors."
"It caused them both a huge amount of worry, she said, and concerns that disgruntled Leeds supporters might appear at their home. The Police advised them to take precautions and a special response alarm was fitted at their home. They were supplied with personal radio activated alarms to wear around their necks and they were advised not to leave the house unless they had to."
The judge regarded Mrs. Levi as a truthful witness, and accepted her evidence that the effect of the itemised conduct upon her had been to cause her real psychological harm, both in the earlier period (2006-8), and in the later period (2010-11).
"52. In the article dated 3rd March 2007 it states:
"Perhaps you would like to ask Mr Levi some questions and ask him to justify his behaviour which is damaging Leeds prospect of advancement. Mr Levi lives at Wike Ridge House, 3 Wike Ridge Gardens, Leeds LS17 9NJ"
Whilst leading counsel for the Claimants submits that this is targeted at the Second Claimant as it is also her address which is revealed I am not convinced that she is actually the target of this invitation to the fans to confront the First Claimant. I have little doubt that if anyone were to consider whether she might be affected by the suggested confrontations the answer would certainly be yes but that is not the test. When football stars have their private lives exposed their family are almost always badly affected but this is just an unfortunate consequence of the media intrusion. At one point when cross-examining the First Defendant leading counsel for the Claimants suggested that the Second Claimant was merely "collateral damage" to him. He was seeking to criticise the First Defendant's lack of consideration for her position but it seems to me this is an apt, if somewhat brutal, description of how the Second Claimant has been affected by these articles. They are not targeted at her but she is affected by it both out of concern for her husband and in this example out of concern for her own safety too.
53. In the article dated 10th March 2007 she is mentioned in passing but only to remind readers that Mr Weston was her first husband. The passage which is pleaded as harassment however is: "Thanks Melvyn. By the way, you do know that your phone number is in the book don't you ". The Claimants contend that as the number in question is their own home number then the harassment applies to both of them. For the same reasons enunciated in the preceding paragraph I do not accept this. The offending words specifically refer to the First Claimant by his first name and that being the case your number must be taken to be the singular form of that word rather than the plural. Again it seems the First Claimant was encouraging fans to contact the First Claimant to complain about his conduct. No doubt the Second Claimant would have been affected by this if it had happened but in my judgement it was not the intention of the First Defendant that she be harassed by it. He was asked in cross-examination why he didn't give more consideration to the Second Claimant's feelings and health. He replied that she didn't come into his calculations at all. This may not make him an attractive character but it does tend to support his argument that he has not targeted the Second Claimant. I accept there may be an objective element where a Defendant does not intend to target a victim but ought to know that he is targeting her. I do not think that even objectively these articles can be construed as targeting the Second Claimant."
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) …
(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 [or involved] 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) …
(b) …
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
2 Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
(3) …
3 Civil remedy
(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.
…
7 Interpretation of this group of sections
(1) This section applies for 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) …
(4) "Conduct" includes speech."
"29. Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.
30. The Act does not attempt to define the type of conduct that is capable of constituting harassment. "Harassment" is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct."
"The word 'targeted' is not in the statute. I take Lord Phillips to be using it to give guidance as to what is meant in s 7(3) by the words 'conduct in relation to a … person': those words are to be interpreted restrictively to comply with s 3 of theHuman Rights Act 1998."
"270. The main target of the articles complained of is Mr Huhne. Ms Trimingham is named in them only because of the very important secondary role she played in the events relating to Mr Huhne. She is not even named by the Defendant in all its articles about Mr Huhne, but only in less than half of them.
271. I would not wish to say that it is impossible that a secondary character to a story, such as Ms Trimingham is in publications about Mr Huhne, might ever succeed in a claim for harassment for speech directed to the primary character, such as Mr Huhne is. If such a case occurs, the court will have to consider it on its own facts…."
"Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress. Employees may be distressed, and understandably so, by managerial conduct which, for instance, being properly and reasonably critical of an employee's poor performance, is entirely within the proper and reasonable scope of the manager's functions and duties."
May LJ went on to note that the fact that harassment under the Act is not only a tort, but a criminal offence, is also bound to:
"colour any appreciation of conduct which amounts to harassment. It would, I think, reinforce the view of a reasonable person that harassment is serious conduct calculated to produce the consequences described in section 7(2) and which is oppressive and unreasonable."
"Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the conduct must be of an order which would sustain a criminal liability under section 2."
"All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour."
Analysis
a) Did those two articles (d) and (e), which were published early in 2007, amount to a sufficient course of conduct, either on their own, or when aggregated with item (i), which occurred in late 2010?
b) If so, is Mrs. Levi entitled to damages, and in what amount?
c) Do those three publications (d), (e) and (i) justify a grant of an injunction to Mrs. Levi, which the judge refused?
I will take those questions in turn.
Lord Justice Ryder
Lord Justice Longmore