Allen v London Borough of Southwark [2008] EWCA Civ 1478

Case No B5/2008/0121[2008] EWCA Civ 1478
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE GIBSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 12 th November 2008
Before
LORD JUSTICE PILLLADY JUSTICE ARDENLORD JUSTICE LONGMORE
Between
ALLENAppellantLONDON BOROUGH OF SOUTHWARKRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in personMr S Butler and Mr J Samson (instructed by Southwark Council) appeared for Respondent.
Judgment
[1]The question in this appeal is whether a number of separate proceedings and associated writs for possession on the grounds of arrears of rent brought by the London Borough of Southwark (whom I will call “the council”) against Mr Carlos Allen can arguably constitute harassment of Mr Allen.[2]He has brought proceedings in the civil court for harassment but Deputy District Judge Hayward and HHJ Gibson sitting at Lambeth County Court have struck out the proceedings on the basis that there is no reasonable cause of action. Rimer LJ has given permission to appeal because it was not clear to him that a reasonable person could not regard the bringing of (as he put it) five claims each raising the same bad point as being harassment.[3]The Protection from Harassment Act 1997 (which I will call “the 1997 Act”) does not define harassment, but section 1 provides under the heading “Prohibition of Harassment”:
“(1) A person must not pursue a course of conduct - (a) which amounts to harassment to another; and (b) which he knows or ought to know amounts to harassment of the other.”
Omitting Section 1A, then subsection (2) says:
“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.”
[4]Section 2 provides that a person who pursues a course of conduct in breach of section 1 commits a criminal offence. Section 3 gives a civil remedy. Section 7 says that harassing includes “alarming a person or causing a person distress” and provides that a course of conduct must involve at least two occasions.[5]It will be seen that there are three requirements for the cause of action: (1) there must be a course of conduct; 2) that course of conduct must amount to harassment of another; 3) the supposed harasser must know or ought to know that the course of conduct amounts to harassment.[6]The first element is satisfied on the facts of this case since there were at least two relevant sets of proceedings. It is the second element that is more controversial. At a comparatively early stage in the history of the statute, the question arose in a case called Baron v CPS (unreported, 13 June 2000) whether litigation could constitute harassment. Morison J said:
“Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel harassed as a result of the lawful conduct of forcefully conducted litigation. On the other hand, if proceedings are being used for an ulterior purpose, namely not to air legitimate grievances but to cause distress to those involved in the process, then the line may be crossed and the acts may become unlawful under the Protection from Harassment Act 1997.”
That quotation from that judgment of Morison J is usually cited from the judgment of Eady J in the case of Merelie v Newcastle Primary Care Trust [2004] EWHC 2554.[7]In Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, Lord Phillips MR said:
“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.”
[8]In Sharma v Jay [2003] EWHC 1230 Gray J set out the principles, as he saw them, which for the purposes of this case I would gratefully endorse:
“i) that in order to constitute harassment the conduct must be calculated (ie likely) to produce the consequence that the claimant is alarmed or distressed; ii) that the conduct must in addition be oppressive and unreasonable; iii) as to reasonableness, that it is incumbent on the claimant in his pleading to allege conduct which is arguably unreasonable; iv) that 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.”
[9]Lastly in Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224, Lord Nicholls said at paragraph 30:
“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.”
It seems to me that the phrase “oppressive and unacceptable” as used by Lord Nicholls is the same as “oppressive and unreasonable” as used by Lord Phillips in the case of Thomas. So the question here is whether it is arguable that the council’s conduct has crossed that line. The fact that harassment is a criminal offence shows that Mr Allen faces the burden of showing that the evidence on which he relies has great cogency: see Re B (Children) [2008] 3 WLR 1.[10]The question at issue in the proceedings issued by the council for possession for the non-payment of rent was whether Mr Allen was entitled to insist on paying his rent at Leathermarket Housing Office (“LHO”) rather than anywhere else. That issue only crystallised, however, in the course of the third set of the five sets of proceedings instituted by the council. Once it had crystallised, the question was whether it was a term of the contract that Mr Allen was entitled to pay rent at that office, and if so, whether the council was entitled to vary that term on giving notice, which they would in theory be entitled to do pursuant to section 103 of the Housing Act 1985 if the procedural requirements for a notice of variation were complied with.[11]Mr Butler, who has most helpfully appeared for the council today, accepted that there was a term of the tenancy contract, or at the very least an express representation, that payment at the LHO, which likewise could not be resiled from without the appropriate notice. That was because the council’s agents had sent a letter to that effect on 3 May 2001, in fact repeated on 4 October 2001.[12]Mr Allen relies on all five sets of proceedings issued by the council. The first set of proceedings was issued on 27 November 1990 but were struck out because when they came on for trial (amazingly not until 30 April 1996) they were struck out because no-one from the council appeared to maintain the claim.[13]The second proceedings were issued on 18 December 1998 but the council withdrew those proceedings on 6 December 1999 for reasons that do not appear readily from the documents. It seems right therefore to treat those two proceedings as having little if any relevance.[14]On 6 September 2000 the council sent Mr Allen a letter requesting payment to be made at the post office rather than, as previously, at the LHO, and then on 23 January 2001 the council issued its third set of proceedings for possession for non-payment of rent and claiming rent arrears. On 27 January the council sent a further letter informing Mr Allen of different methods available to him for paying rent. On 30 April 2001 Mr Allen sent a letter to the court saying there was no rent due and no legal obligation to make payment via the different methods. On 2 May 2001 the claim was dismissed. The reason for that dismissal appears from a fax or memorandum of a Mrs Cheryl White of 7 December 2001, which says in terms that the reason the claim was dismissed was that she was unable to prove in court that any notice had been given to vary the terms of the tenancy, and although section 103 of the Housing Act was not mentioned, that appears to be the source of the assertion that there was a right to vary if notice was given. That explanation was repeated in a memorandum of 28 January 2002.[15]Meanwhile, as I have said, on 3 May 2001 the council had expressly notified Mr Allen that payment of rent would be accepted at the LHO in the letter which I have already identified in paragraph 11 above. One might therefore have thought that that would have been the end of the matter. However, on 19 January 2004 the council issued a fourth set of proceedings for possession for failure to pay rent, and claiming rent arrears, without taking any steps to serve any notice of variation of the terms of the tenancy, which as Mrs White had explained was the reason for the failure of the third set of proceedings. On 18 February 2004 that claim was dismissed and one must assume that it was likely to have been dismissed for the same reason.[16]Despite all that, on 25 March 2004 the council’s solicitor, Mrs Deborah Holmes, sent a letter to Mr Allen telling him that now that there was no longer a cash office he had to pay his rent via the Post Office. That letter bears recitation. As I say, it is on the notepaper of the council’s own solicitor and says:
“Dear Sir, … We are instructed by the Leathermarket Housing Office in respect of the above [viz rent payment]. Our clients informed you that they no longer have a cash office at their offices and you were advised on alternative methods of paying your rent. You were also issued with a swipe card which would enable you to pay your rent at any post office. We therefore reiterate our clients’ position. Our clients no longer have the facility to accept rent payments at their offices. Our clients have not acted unlawfully in closing that cash office and indeed consulted all tenants, through their respective tenants associations (as they are obliged to do) prior to the closure taking place. We understand that you returned the swipe card that was issued to you. The card will once again be sent to you. It is of course a matter for you whether you wish to retain and use the card. Having said that our clients have no wish to be engaged in a situation where the card is passed from one party to the other. We would therefore suggest in the strongest possible terms that you retain and use the card. Our clients will no longer accept rent from you at their offices and will take steps to recover possession of your property if you fail to pay your rent as you are obliged to do under the terms of your tenancy agreement.”
[17]No indication of how that obligation is said to have arisen is given, and in the absence of the variation which can be made pursuant to the terms of section 103 of the Housing Act, as Mr Butler informed us this morning, it is very difficult to see how that last sentence could possibly be justified.[18]Mr Allen replied in short course saying that the requirement to pay at the post office was unjustified. His response was never acknowledged by the council, but six months later they just sent another unjustifiable demand for payment at the post office, that letter being dated 25 November 2004.[19]Notwithstanding the failure of the third set of proceedings for the reasons given by Mrs White and the failure of the fourth proceedings, which should never have been brought, the council then instituted a fifth set of proceedings for possession for non-payment of rent on 26 June 2005. Mr Allen put in a defence saying that rent had been tendered at the Leathermarket Housing Office. The council filed a reply saying that the cash office had been closed.[20]That case came before HHJ Simpson of the Mayor’s and City of London Court on 28 April 2006. He noted that the council could not produce evidence to support their argument that arrangements for rental payment at the Leathermarket Housing Office had changed back in 1999 and he also noted that the council was just relying on the terms of an undated handbook permitting payment in cash at the Peckham and Walworth Road cash offices. The judge was asked to adjourn the case so that Mrs White, who had given a witness statement, could come to court and explain how the arrangements had supposedly changed in 1999. He however refused to do that, saying:
“If I had allowed oral evidence to be heard, that would be for the purpose of making a case where none existed. The longer the council’s case persisted, the more I knew the case was hopeless. I will not grant an adjournment. It is of course open to Southwark to bring further proceedings and as to the disposal of that case I will say nothing. The present case is hopeless and the action is dismissed.”
[21]It is on that sequence of events between 23 January 2001 and 28 April 2006 that Mr Allen relies and which he says constitutes harassment. Mr Butler for the council submits that all the evidence shows is carelessness, negligence, and indeed he is prepared to admit vexatiousness. But he says on no possible view could the events which I have outlined constitute harassment, and the question for us is whether it is arguable that a reasonable person would think that the course of conduct amounted to harassment within section 1(2) of the 1997 Act.[22]Reluctantly I am unable to agree with Mr Butler despite his attractive submission. Mr Butler asserts that the council was merely negligent and incompetent but that is only his assertion. In the absence of evidence from the council explaining how it came about that, despite their officers knowing that the third set of proceedings had failed because no notice of variation of the terms of the tenancy had been given, and explaining how the council’s solicitor could, in the light of that knowledge, have threatened to bring possession proceedings if rent was not paid at the post office and thereafter did bring such proceedings, and explaining that all this was mere incompetence, a reasonable person could arguably come to the conclusion that the course of conduct set out above was indeed harassment. Of course, if there were such evidence a court might well look at the matter very differently but that does mean that Mr Allen’s proceedings should be struck out now in the absence of such evidence, as having no reasonable prospect of success. They will have to be tried.[23]HHJ Gibson in the court below said merely this:
“I am satisfied that the Deputy District Judge was right to find that no reasonable person would conclude that it would be a harassment to issue proceedings and to await the outcome of them. I put it in the other way: that no reasonable person could conclude that the actions of the local authority of which Mr Allen complains could be considered to be harassment and to amount therefore to a criminal offence which gives rise to a civil remedy.”
Mr Butler tells us that the history of the matter was not explained to the judge in the detail it has been put before us. In particular, he says that no reference was made in the court below to the failure of the third proceedings because of the need to prove a variation in the terms of the tenancy which needed to be achieved by reference to section 103 of the Housing Act of 1985. The judge therefore had far from the complete picture which he should have had. It is always a difficult exercise for counsel to persuade this court that, when the full picture has been deployed before this court, the judge’s decision was nevertheless right for reasons other than those he gave. Parties must be prepared with their submissions on the evidence rather than make them for the first time before this court.[24]So for my part I would allow this appeal, and despite all the difficulties that Mr Allen will undoubtedly face in the way of success at the trial, a trial will have to take place.[25]I agree. In so agreeing I give no indication as to whether the conduct of the London Borough of Southwark amounted to harassment for the purpose of the Protection from Harassment Act 1977 or whether the facts disclose a real prospect of success in the action. What amounts to harassment is the subject of section 1(2) of the 1977 Act. I agree with the observation of Gage LJ in Conn v Sutherland [2007] EWCA Civ 1492 that what is the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable may well depend on the context in which the conduct occurs. Gage LJ illustrated that by adding what might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward or vice versa: see paragraph 12. However, the position on this appeal is I do not consider it is appropriate for this court, an appellate court, to deal with the question of what amounts to harassment for the purposes of this appeal merely on the basis of 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. Mr Allen has conducted this appeal in person, and I am pleased to say that a representative of the Personal Support Unit has also been in court with him, but if the matter goes further Mr Allen should consider whether he should approach a body which could offer him free legal help and possibly representation. He can obtain details of that by going to the Royal Courts of Justice Citizen’s Advice Bureau in the main hall. If there are further steps in these proceedings he is at risk as to costs, and that has been explained to him by Pill LJ.[26]There has been concern in the authorities that by allowing this appeal or by allowing a claim under the 1977 Act the courts might be encouraging excessive claims. Lord Nicholls dealt with that point in Majrowski. The answer, he thought, was that the court should be astute to sort out the wheat from the chaff at an early stage: see paragraph 30 of his speech, to which Longmore LJ has already referred. Accordingly the allowing of the appeal in this case should not be seen as encouraging claims under the Protection from Harassment Act 1977.[27]Finally on one small point, Longmore LJ referred to the judgment of Gray J in Sharma v Jay. For my own part I doubt whether the first point referred to by the learned judge is good law now. The case was decided in 2003 before Majrowski, and the particular paragraph reads:
“that in order to constitute harassment the conduct must be calculated (ie likely) to produce the consequence that the claimant is alarmed or distressed; In the Majrowski case Baroness Hale said at paragraph 66 of her speech: “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 though 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.”
[28]For all these reasons I would make the order which Longmore LJ has indicated and allow this appeal.[29]I agree that the appeal should be allowed for the reasons given by Longmore LJ. Accordingly, the appeal is allowed.

Order

Appeal allowed

Cited in 4 later judgments