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||Neutral Citation Number:  EWCA Civ 1125
||Case No: B2/2016/2602/CCRTF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT NOTTINGHAM
HIS HONOUR JUDGE OWEN QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
MRS JUSTICE ROSE
Ranjit Bhose QC and Ryan Kohli (instructed by Metropolitan Housing Trust Limited) for the Appellant
Philip Davy (instructed by French & Co) for the Respondents
Hearing date: 8th March 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Kitchin:
- This is an appeal by the defendant housing association, Metropolitan Housing Trust Limited ("the Association"), against the judgment of His Honour Judge Owen QC given on 10 June 2016 in the Nottingham County Court. By that judgment and following a three day trial, the judge held that the Association had unlawfully harassed two of its tenants, the first claimant, Mr Worthington, and the second claimant, Ms Parkin, contrary to s.1 of the Protection from Harassment Act 1997 ("the 1997 Act"). The judge then proceeded to award Mr Worthington and Ms Parkin damages pursuant to s.3(2) of the 1997 Act of £4,750 and £4,160 respectively.
- The Association now appeals to this court, with permission granted by Henderson LJ on the papers, on two grounds which have at their heart the contention that the Association's conduct fell significantly short of the standard of gravity required to constitute harassment within the meaning of the 1997 Act.
The legal framework
- The 1997 Act provides, so far as relevant:
"1 Prohibition of harassment
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section …. the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
(3) Subsection (1) … does not apply to a course of conduct if the person who pursued it shows—
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
2 Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1(1) … is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
3 Civil remedy
(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
7 Interpretation of this group of sections
(1) This section applies for the interpretation of sections 1 to 5A.
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve—
(a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or
(4) "Conduct" includes speech.
(5) References to a person, in the context of the harassment of a person, are references to a person who is an individual.
- A number of points of relevance to this appeal emerge from these provisions. The purpose of the statute is to prevent a person from pursuing a course of conduct which amounts to harassment and which he knows or ought to know amounts to harassment; the pursuit of a course of conduct must involve conduct in relation to any one person on more than one occasion; and, although harassment is not defined, it includes causing alarm or distress.
- Guidance as to what amounts to harassment has been provided in a number of authorities to which we have been taken. For the purposes of this appeal, I need only refer to two of them. In Majrowski v Guy's and St Thomas's NHS Trust  UKHL 34,  1 AC 224 Lord Nicholls said this at :
"Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."
- Baroness Hale expressed it this way at :
"… the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3). All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour."
- In Sunderland City Council v Conn  EWCA Civ 1492,  IRLR 324, Gage LJ (with whom Buxton and Ward LJJ agreed) emphasised at  that what crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable may well depend upon the context in which that conduct occurs. The touchstone for recognising what is harassment for the purposes of ss.1 and 3 is:
"whether the conduct is of sufficient gravity to justify the sanctions of the criminal law."
- The events giving rise to these proceedings took place in 2007 and 2008 in Chesterfield. In light of the submissions of the parties at the hearing of this appeal, it is necessary to set these events out in some detail.
- By 2007 Mr Worthington and Ms Parkin had been assured tenants of the Association and its predecessor, a company referred to as Spirita, for a number of years. Mr Worthington had been an assured tenant in respect of 46 Hardwick Drive since about 1997. Ms Parkin was an assured tenant in respect of 28 Hardwick Drive from March 2000 until August 2007 at which time she moved to and became an assured tenant in respect of 52 Hardwick Drive.
- Mr Worthington and Ms Parkin had for some time been concerned about antisocial behaviour in their neighbourhood. Indeed, prior to his tenancy in respect of 46 Hardwick Drive, Mr Worthington had been obliged to move home on no less than four occasions and Ms Parkin had, with the consent of the Association, installed CCTV equipment at her home at 28 Hardwick Drive for the purposes of her own security. In addition, Mr Worthington had formed what he described as the Arkwright Town Residents Group of which he was the self-appointed chair. He set up a website for this group on which he collated and stored evidence of what he considered to be unacceptable behaviour and from time to time he uploaded onto the site some commentary on the material displayed there.
- Unfortunately the activities of Mr Worthington and Ms Parkin generated a considerable amount of hostility from their neighbours. The Association received complaints that Ms Parkin's recordings were causing a nuisance and invading the privacy of other residents; and it was said that both Mr Worthington and Ms Parkin were taking inappropriate photographs of other residents including, in particular, children and other young people.
- In April 2007 and as a result of a complaint they had received, Ms Cartledge, the Association's area manager, and Ms Thomas, the Association's senior neighbourhood officer, met Mr Worthington and Ms Parkin at 28 Hardwick Drive. Mr Worthington evidently impressed upon Ms Cartledge and Ms Thomas his concerns about antisocial behaviour and Ms Cartledge asked Ms Parkin about her CCTV equipment. However, no suggestion was made at that meeting that the equipment was being used for an inappropriate purpose and the judge found that it had been used solely for the purpose for which it had been installed, that is to say for Ms Parkin's own security.
- Nevertheless, the Association received a further complaint a short time later about Mr Worthington's website and that he was "going round the village taking pictures of children". This led to another meeting between Mr Worthington, Ms Parkin and Ms Cartledge on 14 May 2017. At that meeting they explained to Ms Cartledge the nature of the website that Mr Worthington had established and they reiterated to her their concerns about antisocial behaviour and the steps they were taking to record it.
- As well as arranging these meetings with Mr Worthington and Ms Parkin the Association sought legal advice and by letter dated 17 May 2007 Ms Thomas wrote to Ms Parkin in the following terms:
"…. On checking previous correspondence I note you were given advice from MHT's solicitor about the siting of your camera and restrictions on the recordings. It would appear from the content of the complaint that you have ignored some of this advice and this may have serious implications for you.
I therefore ask that you redirect your camera so that it does not capture routine activities of children and young people. You are also asked to arrange for the removal from public display [of] images of young people where permission has not been given for their use. Please let me know when this has been done.
I regret that, if you fail to comply with these requests, I will have no option but to withdraw our consent to the fitting and use of CCTV cameras on our property and you will need to render them inoperable or take them down. …"
- It is contended on behalf of the Association that this was a measured and reasonable letter for the Association to write. However, as the judge himself noted, the Association was on-site weekly and knew full well about Ms Parkin's position; and that, through no fault of her own, she had suffered antisocial behaviour and had installed CCTV equipment for security purposes and with the Association's consent. Moreover, the equipment was doing the job which it had always done and for which permission had been granted.
- On 21 May 2007 Mr Worthington wrote to the Association expressing his dismay at the letter to Ms Parkin, stating that it was appalling that the Association had acted on malicious gossip and explaining that Ms Parkin's use of the CCTV system was unobjectionable. Certainly the Association took no further action in respect of the CCTV system until September, the arrival of Mr Kotecha and the matters to which I shall shortly come.
- In August 2007 Ms Parkin moved from 28 to 52 Hardwick Drive and she installed her CCTV equipment at this property too, again for the purposes of her own security.
- On 6 September 2007 Mr Kotecha, who by this time had been retained by the Association on a fixed term contract as estate manager, visited Ms Parkin at her home and advised her to remove her CCTV equipment.
- On 13 September 2007 a further meeting took place between Mr Kotecha, Mr Worthington and Ms Parkin at which the CCTV equipment was discussed once again. But in addition, Mr Worthington and Ms Parkin explained to Mr Kotecha the problems that they had been having with antisocial behaviour and that, among other things, threats had been made against Ms Parkin by another resident.
- On 14 September 2007 Mr Worthington sent an email to Ms Thomas and Ms Cartledge detailing the troubles they had been having and which they had related to Mr Kotecha. Ms Thomas forwarded this email to Mr Kotecha who then sent an email to Mr Worthington in the following terms:
"Vanessa has forwarded me your email. We spoke yesterday about the CCTV Lynda has installed. Due to the nature of complaints and seriousness of the [sic] we are having to seek legal advice from our solicitors. As I explained to Lynda when I visited her on 6th September my advice to her was to remove them. She has failed to take my advice and complaints continues [sic] regarding the CCTV. The Association have to act on every complaint…"
- On 15 September 2007 Mr Worthington wrote to Ms Cartledge complaining about, among other things, Mr Kotecha's conduct at their last meeting on 13 September, his unsympathetic response to their concerns about antisocial behaviour and that he seemed to be interested only in Ms Parkin's continued use of her CCTV equipment. The letter recorded that his concerns were "endorsed by" Ms Parkin.
- The judge found that by this time the relationship between Mr Worthington and Ms Parkin, on the one hand, and Mr Kotecha, on the other hand, had become difficult, that Mr Kotecha had got a "bee in his bonnet" about Ms Parkin's use of CCTV equipment and that he viewed information he had received from other residents about its use without any form of critical analysis. Further, the judge continued, those charged with the managerial responsibility for Mr Kotecha ought to have seen that he had got "the wrong end of the stick" and should have appreciated that his work required careful scrutiny and supervision, but that such scrutiny and supervision was not provided.
- Instead and at the instigation of Mr Kotecha, the Association instructed its solicitors, Martin Lee & Co ("Martin Lee"), who wrote to Ms Parkin in the following terms by letter dated 21 September 2017:
Re: Spirita Limited
We have been instructed by the above named who advise us of concerns which have been expressed to them about the use by you of CCTV cameras from within the premises at 52 Hardwick Drive that you rent from our client.
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. Our clients refute that the reason for you taking these photographs relates to your own security. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. You have already been advised to move the cameras from the positions which they are installed but we understand that you have refused to do so.
So that our clients can assess the merits of the complaints against you as regards pictures being taken of third parties we request you disclose to us copies of all pictures you have taken using this equipment."
- By letter dated 24 September 2007 Martin Lee wrote to Mr Worthington in similar terms:
Re: Spirita Limited
We have been instructed by the above named who advise us of concerns that have been expressed to them about the use by you of CCTV cameras from within the premises at 46 Hardwick Drive that you rent from our client.
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. We are instructed to advise that our clients require you to remove the cameras from the positions where they are installed forthwith.
In the first instance our clients wish to assess the merits of the complaints against you as regards pictures being taken of third parties and we request that you disclose to us copies of all pictures you have taken using this equipment."
- As subsequently became clear, it was at about this time that Mr Kotecha set about gathering evidence in support of the position he was taking about the continued use by Ms Parkin of her CCTV equipment. First, on 24 September 2007 and at the request of Mr Kotecha, Ms Parkin was visited in her home by two police officers, PC Akeel Hussain and PCSO Abigail Lee. They inspected her CCTV equipment and saw the images which were being recorded.
- Secondly, at the beginning of October 2007 the Association received, through Mr Kotecha, a petition and seven statements purportedly prepared by residents. The petition, apparently signed by around 80 persons, was headed:
"This petition is regarding Linda [sic] Parkin and Colin Worthington having cameras facing onto the children's football field and also facing residents [sic] properties which we feel is invading peoples [sic] privacy. We would like Spirita to act on this immediately and take action to have these cameras removed with immediate effect."
- In fact, however, only a small proportion of the individuals who signed the petition were residents and the judge found that it had been produced on Sunday, 30 September probably at one of the junior football sessions.
- As for the statements, these were produced by Mr Kotecha, after discussions with certain residents, in order to provide evidence for him to pass on to his managers. They contained complaints that Mr Worthington and Ms Parkin had installed CCTV cameras which were being used in a manner which amounted to an invasion of privacy; and that Mr Worthington had been seen taking photographs of children without any proper reason to do so and had created the impression that he was working for Spirita.
- The fruits of Mr Kotecha's efforts were also reflected in a note prepared by Beth Watson of the Association on 27 September 2017. This note, entitled "Lynda Parkin Case Review", detailed complaints made by Ms Parkin since her move to 52 Hardwick Drive before turning to the issue of CCTV equipment. It recorded that although Ms Parkin had had permission to install CCTV equipment at 28 Hardwick Drive, when she moved to 52 Hardwick Drive "she was advised by Vanessa Thomas that she must put a new request in writing to erect cameras at her new home. This had not been done". The note continued:
"Lynda's new home is only a couple of doors away from Colin Worthington's home. Lynda and Colin now have 3 cameras each in their homes, and between the 6 cameras are filming a large area including several residents' homes. We have received complaints from 5 households who feel that Lynda and Colin's cameras are infringing their privacy. Formal statements are being taken from each of these households this week.
In addition, the local Beat Manager- PC Akeel visited Lynda's home on Monday 24th September and reported back to us that Lynda's cameras were filming the roundabout in the centre of Arkwright, and also the front door to the Spirita Arkwright office. We think that this is infringing the privacy of customers who may choose to visit the office. The Police have told us that they have had had numerous complaints from residents about the CCTV cameras, and while they cannot take action as the issue is a civil one, they are concerned and do want to see action taken to resolve the issues as soon as possible.
The advice from our solicitor [Martin Lee] is that, should the cameras not be removed and the footage not be supplied, we should seek an injunction against both Colin and Lynda to compel them to remove or resite the cameras."
- Mr Kotecha, acting on behalf of the Association, then sought further legal advice from Martin Lee in relation to the materials which he had gathered. That advice was given by letter addressed to Mr Kotecha dated 4 October 2007. Martin Lee confirmed their previous advice that the installation by Mr Worthington and Ms Parkin of CCTV cameras could amount to a breach of their tenancy agreements and observed that they had received no reply to their letters to Mr Worthington and Ms Parkin of 24 September 2007. They said that consideration had been given to the statements and petition provided by Mr Kotecha; noted that the statements confirmed that the positioning of the CCTV cameras was causing a nuisance; and recorded their assumption that the cameras were recording images of public places, for example the local children's playground. Martin Lee also referred to residents' complaints that Mr Worthington had been taking photographs of children with his camera, and that he had been "masquerading as an officer employed by Spirita". They expressed the opinion that "on the balance of probabilities" an application against him for an injunction would be successful. As for Ms Parkin, Martin Lee advised that the case against her was "not as strong" because the allegations about her related only to the installation and use of CCTV cameras. Nevertheless, they continued, the written complaints were evidence that she was causing a nuisance to her neighbours and an application against her for an injunction would also have a reasonable prospect of success.
- A case conference was set up for 10 October 2017 to decide what should be done.
- Meanwhile, by email of 24 September 2007, Mr Richard Hewgill, chairman of the Association's Compliance Committee, wrote to Ms Russell, the Director of Quality and Compliance, expressing concerns about the handling of the case:
"Cases like this often lead to counter-accusations, and I would be astounded if there is any possible ground under which we could threaten legal action if the cameras are positioned as described [by Mr Worthington], and the only way to check this is to go and view them. That being the case, I would be disgusted if it turns out that a threat of legal action has been made without so checking.
As a Board member I would expect to receive an immediate assurance that this is not the case or to be advised of the legal advice that supported this action. In the absence of either of these I will expect to see a copy of a letter to the person concerned setting out the proposed current course of action."
- By email of 4 October 2007, Mr Mark Lowthian, a senior manager, wrote to Mrs Cartledge asking her to ensure that Ms Thomas or Mr Kotecha visited Mr Worthington's and Ms Parkin's home before the case conference.
- The judge described the advice given in these two emails as elementary and wise and that the thrust of that advice was that simple investigative steps had to be taken before any threat of legal action was made. No such steps were ever taken, however.
- On 10 October 2007 the case conference duly took place and it was attended by, among others, Ms Watson, Mr Kotecha, PC Hussain and Inspector Waterfall. It appears that at this conference Mr Kotecha presented the evidence he had gathered.
- Thereafter the Association wrote to both Mr Worthington and Ms Parkin on 11 October 2007 stating that it intended to take immediate action to expel them from their homes The letter to Mr Worthington, signed by Ms Cartledge, said this:
"Re: Tenancy Breaches
I am writing to you further to our recent correspondence about your CCTV system.
Despite your assurance that you do not have, and you have never had, CCTV cameras at your property we have evidence to suggest that cameras were in use at your property very recently.
In addition, Spirita have received a petition signed by some 80 Arkwright residents who feel that their privacy and that of their families is being invaded by your cameras.
This represents a serious tenancy breach and is causing considerable concern to members of the Arkwright community, Spirita and the Police.
On that basis I am writing to notify you that you will shortly be served with a Notice of Seeking Possession (NSP). In addition, Spirita intend to pursue legal action against you in this matter, and we will be taking legal advice from our solicitors on our next course of action.
You will be delivered a Notice of Seeking Possession within the next few days and we will notify you of the further legal action we intend to take in due course."
- The letter to Ms Parkin, also signed by Ms Cartledge, was in the same terms save that its second paragraph reads:
"We have evidence that your cameras are filming areas of Arkwright including the road, car park and field. This constitutes an invasion into the privacy of members of the public."
- Both of these letters were inaccurate in serious respects. In the case of the letter to Mr Worthington, he had never had CCTV cameras at his property; the petition had not been signed by 80 Arkwright residents; and he had committed no breach of his tenancy, let alone a serious one.
- As for Ms Parkin, she did have a CCTV system but, as the judge found, it had been used only for the purposes of her security and not to invade the privacy of members of the public. In other respects, the letter suffered from the same deficiencies as that sent to Mr Worthington.
- On 5 November 2007 Martin Lee wrote another letter to Mr Worthington. They now conceded that, at the time they had written their letter of 24 September 2007, he may not have had CCTV cameras installed at his home and instead advised him that "we have been instructed that you have on a number of occasions taken photographs with a digital camera of other residents, and particularly children of other residents, living in the locality of your home." They continued that Mr Worthington had failed to disclose copies of photographs that he had taken using this camera. They also asserted that they had received other evidence of him "abusing other residents" and concluded with a threat of proceedings "either for an injunction or for possession of your home, or both".
- On the same day Martin Lee wrote to Ms Parkin in similar terms. They demanded that she remove her CCTV equipment forthwith and asserted that a failure to do so would amount to a breach of her tenancy agreement. They continued:
"Our clients have received a number of complaints from others living in the locality to the effect that they are being caused a nuisance and annoyance by virtue of the fact that your cameras are placed in a position that records images of people going about their lawful business in public areas. It is a term of your tenancy that you should not cause a nuisance or annoyance to neighbours, other residents or persons carrying out lawful activities within the locality."
They concluded with a threat of legal proceedings unless the CCTV cameras were removed forthwith.
- Faced with these letters, Mr Worthington and Ms Parkin sought legal advice from Chesterfield Law Centre who replied to Martin Lee on their behalf by letters dated 8 November 2007. They denied all the allegations and implications of misconduct levelled against them including the allegation that children had been photographed or filmed inappropriately.
- Nevertheless, by letter dated 14 December 2007 Martin Lee maintained the allegation that Mr Worthington had used a camera to record images of children and that this constituted a nuisance and annoyance. They reserved their position in relation to the institution of proceedings.
- By email dated 11 January 2008 Ms Russell wrote to Mr Worthington in the following terms:
"I have now had the opportunity to check with Spirita. I understand that Spirita are seeking an injunction against you and are still waiting for a court date. I am sure you understand that I cannot comment on the information in your email while the legal proceedings are in progress …
Meanwhile you will continue to be suspended from the NRG while legal action is pending and I will contact you again after the court hearing to discuss your continued membership of the NRG…"
- The reference here to the "NRG" is a reference to Mr Worthington's role as a representative on the National Residents' Group, a body of the Association's tenants which works with the Association to improve its performance. However, despite Ms Russell's claim to have checked the position, no legal proceedings were in progress and the Association was neither seeking an injunction against Mr Worthington nor waiting for a court date. However, it was not until 4 February 2008 that Mr Worthington was told that there were no legal proceedings on foot.
- As for Ms Parkin, the threat to take proceedings against her to enforce the terms of her tenancy agreement unless she removed her CCTV cameras was repeated by letter from Martin Lee to Chesterfield Law Centre dated 13 December 2007. Then, by letter dated 10 January 2008, Martin Lee wrote to Chesterfield Law Centre in these terms:
"We are instructed that your client has not removed the CCTV cameras and in the circumstances we write to advise that unless we receive confirmation that the equipment has been removed within the next 7 days then we are to make an application for an injunction to enforce the terms of the tenancy agreement."
- No such proceedings were ever commenced, however. Nevertheless it was not until 16 June 2008 that the Association informed Ms Parkin by letter that legal proceedings were not being pursued.
- The judge delivered his judgment ex tempore at the conclusion of the trial. It is long and detailed. He began by setting out the relevant legal principles, about which there was no dispute. There followed a thorough review of the evidence in the course of which the judge made the findings to which I have referred. The judge then reasoned as follows.
- The Association gave Ms Parkin express permission to use CCTV equipment at her home at 28 Hardwick Drive for the purpose of protecting her from anti-social behaviour and abuse. She reasonably assumed that the same equipment could be carried with her to 52 Hardwick Drive and used there for the same purpose. Nevertheless, in May 2007 and without any proper explanation, complaints made by Ms Parkin's neighbours were taken on board and led to the letter of 17 May 2007. However, nothing further was done until September when Mr Kotecha, who had by that time been employed by the Association, visited Ms Parkin at 52 Hardwick Drive.
- Thereafter matters escalated and they did so essentially because Mr Kotecha, a junior employee, asserted that Ms Parkin's CCTV equipment had to be removed despite the fact that, as the Association knew, it had been installed for her protection against further abuse of the kind to which she had been subjected. In this connection the judge said this at :
"It was from this moment that these parties got off on the wrong foot, but significantly, it is clear, and I find, on the evidence before me, that the probability is, whatever may have been the duties and functions of Miss Cartledge, Miss Thomas or Miss Watson, Mr Kotecha had the freedom to deal with this matter in the way he saw fit, and that was why it was, in effect, he, the junior employee, who was giving instructions to the solicitor and why it was that the solicitor, in turn, having produced his draft letter, sought verification from Mr Kotecha. It is in the light of that lack of supervision and care by Mr Kotecha's managers, and Mr Kotecha's own carelessness or incompetence that the solicitors' threatening letters of the 21st and 24th September were sent out. Without more, these letters may not constitute free standing evidence of a completed cause of action, they are material parts of the overall course of conduct complained of which culminated in the decisions taken which directly affected the Claimants on 11 October 2007 to which I have referred."
- The judge was also very concerned about the threats made to Mr Worthington, as he explained at :
"…[Mr Worthington] never had any equipment at all and it begs the question how could such statements be obtained from residents where it is asserted that he did? The answer is that baseless allegations were assumed to be true and acted on, using the powers and resources available to the Defendants in their capacity as the Claimants' landlords in an oppressive manner."
- Ms Parkin did have CCTV equipment but, as the judge went on to say:
"So far as [Ms Parkin] is concerned she clearly did have such equipment, wholly lawfully whilst she was at number 28 without abuse of that equipment, and understandably the same equipment, it was assumed by her, reasonably, could be carried with her to number 52 on the condition that it be used under the same conditions. Incidentally, such permission was given retrospectively. I find that that equipment had at all times been used responsibly. Put in another way, there is no evidence which I find credible to show that [Ms Parkin] has acted other than responsibly with this equipment."
- The judge turned next to the question whether the approach adopted by the Association was disproportionate. He found that, following Mr Kotecha's involvement, its approach was seriously flawed and littered with acts of carelessness and with careless omissions. But he recognised that this did not necessarily mean that the Association's conduct was so oppressive and unacceptable as to amount to harassment. In this connection he reiterated that the problem with Mr Kotecha's approach was that he had got "the wrong end of the stick completely". At no stage did he stop and consider properly the response of Mr Worthington and Ms Parkin to the assertions that he was making, and he had no proper understanding of the history. Instead he went ahead and acted on the petition and so-called formal statements he had devised in light of his discussions with residents. These had not been "made up" but it was likely that "he listened to vague stories from certain residents without any kind of critical enquiry or … knowledge of the history of the estate." The problem was compounded by the fact that he was inadequately supervised, as the judge explained at :
"It is also likely that [Mr Kotecha] gave the appearance in the meeting of the 10th October and to Miss Thomas and also Miss Watson as being entirely on top of the case and that he instilled in them confidence in his assessment of the position, contributed to by their lack of minimum critical scrutiny and positive management and supervision. The [Association's] position is that that is not so and that proper management was exercised; at that meeting there were no less than four levels of management above Mr Kotecha and that the decision, a joint decision, was take in a responsible way. I am unable to accept that general explanation. For the reasons I have given, the approach was utterly flawed and hopelessly careless, not least since they had been given clear, specific guidance, given the nature of the allegations and the nature of this case, the basic steps which had to be taken, by [Mr Hewgill] and more recently, at the time, by Mr Lothian. Without, as I find, any or any adequate explanation, those basic and sensible steps were not taken. The probability is that everybody was going along with Mr Kotecha's presentation because there had been utterly inadequate, uncritical analysis by Miss Thomas, Miss Watson and Miss Cartledge. Solicitors' letters were sent out on a wholly incorrect and unjustified basis. [Mr Worthington] never had CCTV. He had made that plain consistently. [Ms Parkin] had CCTV, but she was permitted, in relation to 28, and so far as somebody subsequently had the bright idea that there was a technical deficiency in that formal permission for number 52 had not in fact been sought, the parties had reasonably proceeded on the basis that it was implicit that she had permission arising out of the initial permission, given the absence of any express prohibition against her when the [Association] agreed to her changing her tenancy from 28 to 52. Following the initial threatening letters in late September 2007 matters gathered momentum in the first week of October, as I have found and described and the result was the letters of the 11th October, followed by the letters threatening and indeed on one occasion asserting that proceedings were underway, through to until June 2008 for [Ms Parkin]."
- After dealing with the evidence of the Police, the judge returned to the question whether the Association's conduct was oppressive and unacceptable. He found that it was at :
"The case collated by Mr Kotecha was fundamentally flawed in that there was no true basis in fact for it and there was no justification for recommending, urging or taking action on that basis without the basic limited investigatory steps being taken, which it was acknowledged [later] should have been taken. Basic competence and fairness required the staff concerned to comply with the very wise, sensible advice and guidance, offered respectively, by [Mr Hewgill] and [Mr Lowthian]. The result is that, although it was suggested in evidence that on the 10th October there was a "very, very careful" examination of the facts to see what the appropriate action be taken, I am unable to find that any such careful examination took place. The result was that, without any sound factual basis, the [Association] sent out the threatening letters to which I have referred, which had the practical effect of threatening possession proceedings and loss of their home, injunction proceedings and all that would entail in relation to their behaviour, in circumstances where it was unwarranted and unjustified. Such conduct, viewed in context, in those circumstances, in my judgment, for those reasons, was oppressive and unacceptable. The truth of the matter is there is no evidence capable of supporting this behaviour. It goes beyond being merely unreasonable or disproportionate."
- After rejecting the submission made on behalf of the Association that Mr Worthington's and Ms Parkin's criticisms really amounted to an assertion that the Association had been careless, the judge expressed his final conclusions at  to :
"79. In my judgment the cause of action is established. To exercise the powers of threats of possession and injunction proceedings requires care. The power should not be exercised in an oppressive manner nor in circumstances where it is simply unacceptable and wholly unjustified. I am satisfied that the [Association's] conduct in embarking on such a course and making sustained threats to [Mr Worthington and Ms Parkin] involving the real risk of the loss of their home, not least in the context of the underlining insinuation of wrong focus on children constituted on the facts of this case harassment.
80. The requirements of the statutory provisions referred to at the outset of this judgment have been established. Two or more acts of harassment have been made out and the necessary course of conduct is proved. A reasonable person in possession of the information known or ought to have been known by [Association's] relevant staff… would think, I find, that this course of conduct amounted to or involved harassment of [Mr Worthington and Ms Parkin]. This course of conduct took place and directly impacted upon [Mr Worthington and Ms Parkin] between no later than 11 October 2007 and 11 January 2008 and between 11 October 2007 and 16 June 2008 respectively (if not in fact from 21 and 24 September 2007 respectively) as appears from the [Association's] and their solicitors' letters threatening legal action in respect of alleged breach of tenancy conditions, injunctions and possession. If a responsible and balanced approach referred to earlier had been taken from the outset those threatening letters would not have been sent and [Mr Worthington and Ms Parkin] would not have been alarmed and distressed by the course of conduct which I find established.
81. For those reasons I am satisfied that the course of action and a right to damages is established for the limited period to which I have referred."
- The Association has been represented upon this appeal by Mr Ranjit Bhose QC and Mr Ryan Kohli. Mr Worthington and Ms Parkin have been represented by Mr Philip Davy.
- The Association has two grounds of appeal. The first is that, in relation to each of the claimants, the judge erred in law in making a finding of harassment against the Association; and the second that, in relation to each of the claimants, the judge erred in law in his conclusion that the pursuit by the Association of the course of conduct in question was not reasonable so that the defence in s.1(3)(c) of the 1997 Act was not made out. Mr Bhose has helpfully accepted, rightly in my view, that in the circumstances of this case the Association cannot prevail on the second ground if it does not prevail on the first. He therefore developed his submissions in relation to the first ground only. He divided those submissions into four parts which I will address in turn.
- Mr Bhose submitted first, that before a court can make a finding of harassment against a defendant it must be satisfied that a course of conduct has been pursued against the victim, and that this comprises conduct on at least two occasions and which has the quality of harassment. This requires the court both to identify each and every aspect of conduct relied upon and then to analyse the nature and quality of what happened or occurred on that occasion to enable a conclusion to be reached. Here, Mr Bhose continued, the judge failed to perform that exercise because all he did was to identify, in the case of each claimant, a period during which the impugned course of conduct took place, namely, in the case of Mr Worthington, between 11 October 2007 (or 24 September 2007) and 11 January 2008, and in the case of Ms Parkin, between 11 October 2007 (or 21 September 2007) and 16 June 2008. This, Mr Bhose argued, was legally impermissible for it left the Association uncertain as to whether all or only some of the correspondence passing between the parties between those dates was relied upon.
- An allegation that a person has pursued a course of conduct which amounts to harassment in breach of s.1 of the 1997 Act is an allegation of a most serious kind for it is inherent in the allegation that the defendant's conduct is of a gravity sufficient to amount to an offence under s.2(1). In my judgment any party faced with proceedings under s.1 of the 1997 Act is therefore entitled to know which activities are said to constitute the course of conduct of which complaint is made. For the same reason, a defendant against whom a finding of harassment has been made is entitled to know the basis of the finding.
- I am satisfied that this requirement was amply satisfied in the present case, however. Here the harassment took the form of correspondence over a period of time between the Association (and its solicitors, Martin Lee) and Mr Worthington and Ms Parkin. It is true that the judge did not specifically identify each of those items of correspondence in his judgment at . However, earlier in his judgment he had made perfectly clear what they were. In the case of Mr Worthington, the conduct comprised the letters of 11 October, 5 November and 14 December 2007 and the email of 11 January 2008. Further, the alarm and distress which these letters caused lasted for a considerable period of time for it was not until 4 February 2008 that Mr Worthington was informed that there were no proceedings ongoing against him and that the Association had no immediate intention of commencing any such proceedings. In the case of Ms Parkin, the conduct comprised the letters of 11 October, 5 November and 13 December 2007 and the letter of 10 January 2008. In her case, the threat of proceedings, was not removed until she received the letter of 16 June 2008. The objectionable nature of each of these letters was explained by the judge in detail in his judgment. It is, in my view, also important to have in mind that, as the Court of Appeal explained in the Iqbal case, it is the course of conduct that has to have the quality of harassment rather than each of the particular events which constitute that course. Therefore it was not necessary for the judge to find that each particular item of correspondence was oppressive and unreasonable. He was instead required to consider the correspondence as a whole, and that is what he did.
- The second submission advanced by Mr Bhose was that the judge failed to consider adequately or at all whether the conduct relied upon was of sufficient gravity to be prohibited by section 1 (1) of the Act. Mr Bhose accepted that the judge referred to the decision of the Court of Appeal in Thomas v News Group Newspapers Ltd  EWCA Civ 1233,  EMLR 4 and that of the House of Lords Majrowski but maintained that when the judge came to analyse the correspondence, in context, he failed to consider whether the conduct crossed the boundary from the regrettable to the unacceptable. Had he done so, he would have been bound to dismiss the claim.
- I am wholly unpersuaded by this submission. The judge expressly directed himself that he had to consider whether or not the conduct complained of crossed the boundary between that which was unattractive and even unreasonable, and that which was oppressive and unacceptable. Thus, at , he identified the question being whether or not the activities of the Association and the threats it made constituted oppressive and unacceptable conduct or whether, as was urged on behalf of the Association, that conduct was merely disproportionate or heavy-handed. Having so directed himself, the judge then proceeded to analyse the Association's conduct in the manner that I have described before concluding at  to  that the sending of the letters to which I have referred at  above and the threats they contained went beyond the merely unreasonable and disproportionate and that the letters as a whole were, instead, unwarranted, unacceptable and oppressive.
- The third limb to Mr Bhose's submissions focused on s.1(1)(b) and s.1(2) of the 1997 Act. He submitted that in order to find the Association liable, the judge had to be satisfied that a reasonable person in possession of the same information would have thought that the impugned conduct amounted to harassment. But, Mr Bhose continued, that was a question with which the judge did not properly grapple.
- Once again, I cannot accept this submission. It is true to say that the judge did not find that the Association knew that its conduct amounted to harassment. Nor did he make a finding that the Association acted maliciously. However, the judge did find that Mr Kotecha's approach was flawed and hopelessly careless, and that the analysis of his materials and presentation by Ms Thomas, Ms Watson and Ms Cartledge was utterly inadequate and uncritical. As a result the letters of 11 October and 5 November 2007 were sent out on a wholly incorrect and unjustified basis. It was in these circumstances that the judge found at  that a reasonable person in possession of the information which the Association's staff knew or ought to have known would have thought that the course of conduct on which the Association had embarked amounted to or involved harassment of Mr Worthington and Ms Parkin. The judge understood the requirements imposed by the 1997 Act, and he asked himself and answered the correct questions.
- That brings me to Mr Bhose's fourth and, to my mind, most powerful submission. He argued that the judge failed properly to analyse the critical letters individually and as a whole and failed to take into account relevant matters. In the result, he continued, no judge, properly directing himself, could have concluded that the Association was guilty of a course of conduct that was oppressive and unreasonable, and no judge, taking into account all material matters, could have been satisfied that the line had been crossed and that the impugned conduct was of a degree of seriousness which justified a finding of criminal liability under s.2 of the 1997 Act.
- Mr Bhose elaborated this submission in the following way. He accepted that the judge was entitled to take into account his finding that the approach adopted by the Association was flawed and careless but argued that the judge was also bound to take into account the following further matters: the Association was in a difficult position because it had received a series of complaints, over time, from neighbouring residents who stated that their privacy was being infringed by the posting of photographs of perceived anti-social behaviour on Mr Worthington's website and by the presence and positioning of CCTV cameras in the claimants' properties. These complaints, received over a number of months from March to early October 2007, included the petition signed by 80 individuals. Further, Ms Thomas had personally viewed the website and noted that photographs existed of alleged anti-social behaviour which appeared to have been taken by Mr Worthington. Moreover, the Association properly instructed its solicitors to write letters to each of the claimants in September 2007, which they did, but no response to them was ever received. The Association was also in receipt of corroborative evidence of the Police officers who had physically inspected Ms Parkin's property in September 2007 and had seen her CCTV cameras first-hand. The Association also sought independent legal advice from its solicitors, Martin Lee, on the strength of its case against each claimant, and it provided to Martin Lee the evidence that it had. Martin Lee then gave legal advice in their letter of 4 October 2007. Importantly, said Mr Bhose, Martin Lee did not advise the Association against taking any action or that there were any failings in its preparation which needed to be rectified before warning letters could be sent. To the contrary, their advice was favourable. The Association then convened the case review meeting on the 10 October 2007, attended by senior management and Police officers, to determine what action to take against the claimants. Acting on the decision taken at that meeting, the Association wrote a reasoned and moderate letter to each claimant on 11 October 2007. These letters did contain threats of legal action but the threats were reasonable and unexceptional and of a kind made by owners of social housing every day of the week as part of their efforts to protect their wider body of tenants. The Association then instructed Martin Lee to correspond on its behalf with the claimants' legal advisors, which they did. Further, Martin Lee's letters were clear, moderate and professional throughout. In particular, said Mr Bhose, Martin Lee put forward the Association's case in a reasoned, measured, and dispassionate way and responded substantively to all the points taken by and on behalf of the claimants.
- In all these circumstances, submitted Mr Bhose, no reasonable person reading the impugned correspondence, in context, could have considered that it amounted to or involved harassment of either claimant and, in finding to the contrary, the judge erred in law.
- Mr Davy, in responding to Mr Bhose's submissions, argued that the judge, having had the benefit of hearing evidence and submissions over nearly three days, reached the right conclusion and did so for the right reasons. Moreover, he continued, there was no material disagreement between the parties at the trial as to the relevant legal principles, and that the judge properly directed himself and ultimately came to an evaluative conclusion with which this court should not interfere.
- Mr Bhose advanced his submissions clearly and persuasively but, in the end, they have failed to persuade me that the judge has made any material error. My reasons are as follows. First, it is important to have in mind that, as Mr Davy emphasised, the claimants were long-term tenants of the Association. They were not home-owners; nor were they tenants in the private rental market. Instead they rented their homes from the Association, a social-housing landlord. Any threat of eviction or possession proceedings was therefore likely to cause them particular anxiety.
- Secondly, the Association was at all material times well aware of the claimants' concerns about anti-social behaviour. It had given Ms Parkin consent to install CCTV equipment in her home at 28 Hardwick Drive for the purposes of her own security and it knew at the latest by the date of the meeting between the claimants and Ms Cartledge and Ms Thomas at that address in April 2007 of the claimants' concerns about the anti-social behaviour of certain other residents. What was more, Ms Cartledge and Ms Thomas had the opportunity to inspect Ms Parkin's CCTV equipment at that meeting and it must have been perfectly clear to them that it was being used for an entirely proper purpose. It is true to say that a further complaint was received some ten days later that led to another meeting between Ms Cartledge and the claimants on 14 May 2007 and that this led to the further letter from the Association to Ms Parkin dated 17 May 2007. However, as the judge expressly found, there can be no doubt that the Association was well aware of the CCTV equipment and that it was being used by Ms Parkin for the entirely proper purposes for which it had been installed.
- Nevertheless, in September 2007 Mr Kotecha took it on himself to make an unwarranted assertion that the CCTV equipment must be removed. Moreover, it was Mr Kotecha who gave instructions to Martin Lee to write the letters of 21 and 24 September 2007 and, as the judge put it, it was due to Mr Kotecha's own carelessness or incompetence that the letters were drawn up by Martin Lee and sent out on behalf of the Association in the terms that they were.
- I recognise that on 24 September 2007 and at the request of Mr Kotecha, PC Hussain and PCSO Lee visited Ms Parkin at her home but, as the judge found, their statements setting out what they saw were insufficient to support an allegation of breach of any tenancy condition although they did provide superficial support for Mr Kotecha. That was not the end of the story, however, for, as the judge went on to explain, an email emerged which PC Hussain had sent to his "mate" Mr Kotecha. In the judge's words this was "a little triumphant in content" and stated that Ms Parkin was "on the back foot" and that he wanted to maintain momentum. The judge was satisfied that this betrayed a lack of professionalism and concluded that he was unable to place any weight on the evidence these officers had given. I am satisfied there is no basis upon which it would be appropriate to interfere with this assessment.
- Fourthly, it was at about this time that Beth Watson produced her file note entitled "Lynda Parkin Case Review", the material contents of which I have set out at  above. There are, as it seems to be, a number of difficulties with this note, however. First, it was or ought to have been perfectly clear that Mr Worthington never had CCTV cameras in his home. Second, the note describes the subject matter of the statements being produced by Mr Kotecha in light of his discussions with residents and having listened to vague stories without any critical enquiry or knowledge of the history of the matter. Third, the report of PC Hussain must be considered in light of my observations in the immediately preceding paragraph of this judgment. And fourth, the advice given by Martin Lee was given on the basis of the instructions they had been given by Mr Kotecha. In light of all of these matters I have no doubt that this file note provides no proper foundation for the actions of the Association which followed.
- Fifthly, on 4 October 2007 Martin Lee then wrote to Mr Kotecha their letter of advice to which I have referred at  above. Once again, however, this advice was plainly based upon the materials provided by Mr Kotecha including, in particular, the petition and the so-called letters of complaint.
- Sixthly, the case conference took place on 10 October 2007 and, without any apparent regard to the advice given by Mr Lowthian and Mr Hewgill, the Association decided to press on and the next day sent to Mr Worthington and Ms Parkin the letters dated 11 October 2007. As Mr Davy fairly points out, these letters contained no proper justification for the threats that they made. In particular, they were wrong to say that 80 Arkwright residents had signed a petition for only a small proportion of the signatories in fact lived on the estate and the signatures had been procured at a football practice; made reference to "the Police", when nothing seen by the Police provided any basis for a suggestion that either of the claimants had done anything improper; accused each of the claimants of a "serious tenancy breach" when they had not breached the terms of their tenancies at all and the allegation had no foundation; and asserted that they were going to be served with notices of the Association's intention to seek possession of their respective homes. These letters had no proper basis and clearly had the potential to cause Mr Worthington and Ms Parkin alarm and personal distress as the Association ought to have known.
- Seventhly, I am satisfied the Association can derive no support for its actions from any of the other matters upon which it relies. It knew or ought to have known that Mr Worthington had never had CCTV cameras installed in his home and it knew or ought to have known that, although Ms Parkin had such cameras, they had not been used for an improper purpose. Further, the various employees of the Association had had ample opportunity to consider the materials on the website set up by Mr Worthington, including photographs of what he thought to be anti-social behaviour, but it has never been suggested that any of these photographs was in any way improper and, in particular, it has never been suggested that any such photograph contained an improper or inappropriate image of any child.
- Eighthly, the threats made in the letters of 11 October 2007 were then followed by a series of further threats. In the case of Mr Worthington, Martin Lee's letter of 5 September 2007 contained a grudging concession that, at the time of their original letter, he may not have had CCTV cameras installed at his property but continued that he had, on a number of occasions, taken photographs with a digital camera of other residents, and particularly children of other residents, living in the locality of his home. The letter also asserted that the Association's investigations were continuing, that Mr Worthington had hampered those investigations and that should it be concluded that Mr Worthington had breached the terms of his tenancy then proceedings would be commenced against him for an injunction or possession of his home. This letter, containing as it did a further assertion that he had taken improper photographs of children of other residents, was bound to cause Mr Worthington anxiety and distress and yet, once again, it had no proper basis.
- Ninthly, the allegation that Mr Worthington had recorded images of children in the locality using a hand-held camera was repeated in the letter of 14 December 2007 from Martin Lee and then, by email of 11 January 2008 he was informed by Ms Russell of the Association that it was seeking an injunction against him and was waiting for a court date when this was wholly incorrect.
- Tenthly, the position adopted by the Association in relation to Ms Parkin was very similar. By its letter of 5 December 2007 it asserted that her cameras were recording images of people going about their lawful business in public areas, that this constituted a nuisance and that a failure to remove the equipment forthwith would constitute a breach of her tenancy agreement and would result in the issue of proceedings against her. That threat of proceedings was repeated in the letters of 13 December 2007 and 10 January 2008 and, as I have said, it was not until June 2008 that she was told that proceedings for possession or injunctive relief were not being pursued.
- In all these circumstances Mr Davy submits and I accept that a reasonable person would think that the Association's actions would cause alarm and distress to Mr Worthington and Ms Parkin. I reject the submission that the letters in issue were unexceptional and of a kind regularly sent by owners of social housing as part of their efforts to protect their wider body of tenants. Mr Worthington and Ms Parkin were threatened with possession proceedings and accused of anti-social behaviour and taking inappropriate images of children. Such proceedings, if successful, would have meant they would have to seek accommodation with a different housing association. Yet the Association issued these threats without taking the most basic steps to ensure that they had a proper foundation. They were in fact totally unjustified. I am satisfied the judge had ample material before him upon which to find that the conduct complained of crossed the boundary and was oppressive and unacceptable, and that it amounted to harassment.
- For all of these reasons, I would dismiss this appeal.
Mrs Justice Rose:
- I agree.
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