S & D Property Investments Ltd v Nisbet [2009] EWHC 1726 (Ch)

[2009] EWHC 1726 (Ch)

Case No 8MA 30188

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Civil Justice Centre Manchester

Date 13/07/2009

Before

THE HON MR JUSTICE NICOL

Between

S & D Property Investments LtdClaimant

Christian NisbetDefendant

Stephen FrenchPart 20 Claimant/Defendant

Ms Cheryl Dainty of Counsel instructed by Pannone Solicitors for Claimant and Part 20 Defendant

Mr Kenderik Horne of Counsel instructed by JST Lawyers Solicitors for for the Defendant

Hearing Hearing dates: 22.06.09, 23.06.09 and 1.07.09

Judgment

[1]The case of Nisbet v French began in the Liverpool County Court on 22nd January 2008. Mr Nisbet sought an injunction and damages against Mr French under the Protection from Harassment Act 1997. An injunction for a limited period was granted the same day, but was later extended. On 16th April 2008 proceedings began in the Manchester District Registry in the case of S & D Property Investments Ltd v Nisbet. This was a debt action for a principal sum of £111,579.53 plus interest which were said to be due from Mr Nisbet. Mr French owns 50% of the shares in, and is one of the two directors of, S & D Property Investments Ltd (‘S&D’). The remaining shares are owned by his wife, Dionne, who is the other director. Indeed, that company’s name is an allusion to the initial letters of Stephen and Dionne French. In his Defence and Counterclaim of 27th May 2008 Mr Nisbet admitted the debt but sought to counterclaim damages for harassment of Mr French for which he said S & D was vicariously liable. He argued that the counterclaim should be set off in extinction or diminution of S & D’s claim.

[2]On 26th March 2009 judgment was entered by consent for S & D in the sum of £135,481.39 inclusive of the interest that had by then accumulated together with further interest at the contractual rate of 20% until payment. However, enforcement of that judgment sum was stayed until the outcome of the trial of the two actions (which were also consolidated) or further order. To avoid confusion I will refer to the parties by their names.

[3]Shortly before the trial date, Mr Nisbet applied for permission to adduce expert evidence. It was an important part of his case that the alleged harassment of Mr French, in addition to causing him anxiety and distress, had led to economic loss. Two of his companies, Albany Assets Ltd (‘Assets’) and Albany Crown Ltd. (‘Crown’) had been engaged in negotiations for the development of a site in Manchester. He alleged that Mr French’s harassment had made him unable to devote the time and energy which this project needed, it had been delayed or otherwise prejudiced as a result and he, as the only shareholder in Assets and Crown, had suffered loss in consequence. The expert evidence which he wished to adduce would have gone to the quantification of that loss. S & D and Mr French opposed the application which, they said, would have delayed the trial and thereby unduly extended the period for which the stay on enforcement of the judgment debt would operate.

[4]On 12th June HHJ Stephen Davies did not authorise the service of expert evidence. However, he directed that the trial should proceed:

‘in relation to all issues other than quantification of any financial loss alleged by Mr Nisbet to have been caused due to delay to the Manchester hotel development project. For the avoidance of doubt, the trial shall deal with all issues other than quantification of financial loss, including: i. whether or not S & D Properties is vicariously liable; ii. whether or not any harassment caused any delay; iii. whether or not S & D Properties or Mr French are liable in law for any financial loss due to delay to the Manchester hotel project.’

[5]It is this trial which I heard in Manchester on 22nd and 23rd June and 1st July 2009.

[6]Mr French acknowledges that until the mid-1990s he had a reputation for extreme violence. He was deeply involved with gang crime in Liverpool. However, it is his case that he put all of this behind him in about 1994 and he now publicly urges those from the same sort of background as he had to give up (or not take up) guns, knives and drugs.

[7]He met Mr Nisbet in about 1996. They became friends and, to an extent, were involved in business together. One venture was Chrymark Security Ltd (‘Chrymark’). Mr Nisbet eventually took this over although Mr French still had (or believed he had) an investment interest. It was not a success and became insolvent in about 2005.

[8]By then two others, Steve Moule and John Mason, had joined Mr Nisbet as directors of Chrymark. Mr French took exception to this and in April 2005 he expressed his displeasure to Mr Nisbet. Mr Nisbet’s recollection was that Mr French said that he would not kill him but he would kill Messrs Moule and Mason. Mr French’s recollection is that something less precise was said. It was an off-hand remark for which he apologised very shortly afterwards in a telephone call to Mr Nisbet.

[9]Three months later, on 3rd June 2005, Mr French met with Mr Nisbet and his solicitor, Heather Summers of JST Lawyers. Her handwritten contemporaneous note of the meeting says ‘SF withdraws statements JM/SM’. The typed version of these notes said ‘Steve French confirming that he was happy to withdraw all statements he had made to John Mason and Steve Moule especially the death threats’. Mr Nisbet relies on this as confirmation that death threats had been made. Ms Dainty, on behalf of Mr French and S&D, observes that the handwritten notes did not refer to ‘death threats’. I do not regard this discrepancy as significant. The typed notes were themselves produced very shortly after the meeting. The typed version is fuller in many respects than the handwritten notes but it was prepared very shortly after the meeting when the events would still have been fresh in Ms Summers’ mind. The typed notes were sent to Mr French under cover of a letter dated 9th June 2005 for his comment. He took no issue with their accuracy. Ms Summers verified the notes in a witness statement for these proceedings and no request was made for her to attend for cross examination.

[10]Mr French also appears to have invested in two other projects of Mr Nisbet’s: Albany Building Ltd (‘Building’) and Albany Irwell Ltd (‘Irwell’).

[11]From about mid 2005 there appears to have been a lull in the relationship between Mr French and Mr Nisbet. In January 2007, however, their friendship and business relationship revived. Mr Nisbet says that Mr French contacted him when he was on holiday. He seemed to be a changed person.

[12]Mr Nisbet and his companies were suffering cash flow difficulties and Mr French offered to provide assistance. The loan which was the subject of the claim in the High Court proceedings was made in four tranches between March and September 2007. Mr French offered this as an interest free loan, but Mr Nisbet insisted on paying interest and at 20%.

[13]In the summer of 2007 the Building and Irwell companies also went into administration. This exacerbated Mr Nisbet’s financial difficulties and, in particular, deprived him of assets out of which he had hoped to repay S&D’s loans.

[14]At the end of August 2007 a book called ‘The Devil’ was published. Although written by someone else, it apparently relied very heavily on material supplied by Mr French. While he denied in evidence that the book was entirely autobiographical, it did describe the violent milieu of the Liverpool underworld of which Mr French had once been part.

[15]From about the end of August 2007 Mr Nisbet began to keep a record of emails, texts and telephone messages which were left or sent by Mr French. Mr French accepted in evidence that they were an accurate record.

[16]In September, Mr Nisbet’s financial difficulties continued. He emailed Mr French on 2nd September 2007 asking if he could provide a further loan. Mr French seems to have responded positively because the final loan from S&D to Mr Nisbet was made on 4th September 2007. This was for £13,000. The payment was channelled through Assets. This brought the total loans made by S&D to Mr Nisbet to £118,850.

[17]Mr French had two other investment possibilities at about this time. One was a property in Turkey which Mr French saw as an up and coming market. The other concerned property in a London docklands development called Pan Peninsula (‘Pan’). The latter in particular featured in the later months of 2007. Mr French had paid the first half of the deposit on the Pan property. A second instalment of the deposit was due on 1st November 2007.

[18]On or about 4th October 2007 the two men met at a restaurant called Tai Pan and discussed the nature of Mr Nisbet’s indebtedness. Whether they reached an agreement and, if so, as to what amount Mr Nisbet owed was disputed.

[19]Mr French wanted to obtain an extension of the time within which he had to provide the second part of the deposit on the Pan development. In order to do this he wished to be able to show that he was due to receive monies shortly. He therefore urged Mr Nisbet to write him a comfort letter. At 7.53am on 9th October 2007 Mr French wrote ‘Its straightforward what ever your comfortable with ranging from 800k to 1.3 million the higher the better the more they think I have the more they will be prepared to wait do you I wouldnt ask but I know I am going to hit my deadlines and I need evidence to add the wait to may extension application thanks mate.’

[20]In response, Mr Nisbet wrote to Mr French on the same day ‘Further to our conversation earlier today, I am writing to confirm the position we are in and detail timescales for monies to be paid to our company and yourself in turn. With regard to the recent money you have lent me earlier this year, we will be in a position to pay the £123k back with interest at 20% per annum by 19th Nov ’07. The Albany scheme has taken a lot longer to complete due to the problems encountered and I would anticipate this being finalised, bank paid etc by Jan/Feb ’08. Depending on the level of success upon completion we would then be in a position to pay between £650k and £1m….’

[21]Mr French was dissatisfied with this version. He thought that the ‘Albany scheme’ should be changed to ‘Albany Crown’ and the amount in the final paragraph of my quotation should be changed to ‘750k (the combined cost of my 2 mortgages as offered by you from your Albany apartments1.3 million deal) and 1.3 million the sum you agreed in the restaurant if money owed was not returned by November 1st and I was not able to back my London projects.’

[22]Mr Nisbet went some distance (but not all of the way) to meeting these requests. A second version of his letter did change the ‘Albany scheme’ to ‘Albany Crown’ and the final sentence of my quotation of the previous version was changed to ‘We would then be in a position to pay £750k.’ Mr Nisbet sent this version with a covering email which said ‘I am not happy with this letter, in particular due to the content of what is in the book and my belief that there will be an investigation. A letter like this when they go into your finances, whilst I believe you are as clean as a whistle, will only drag me into the investigation, if not already, when I know I have done nothing wrong.’

[23]The ‘Albany Crown’ scheme referred to a plot of land which Crown owned in Manchester. There was existing planning permission for a number of serviced apartments. Mr Nisbet’s preferred option, however, was to enter into a Joint Venture with a developer who could provide the finance for a bigger project that would have involved a large hotel as well as various other uses for the land. This would have needed new planning permission.

[24]From the middle of October 2007 Mr French began to suggest to Mr Nisbet that he should sell the Crown building. Mr French had a possible buyer in mind whom he understood would be willing to pay £15 million. When Mr Nisbet said that this would not cover his liabilities of over £14 million, Mr French said that he thought he would be able to have the offer increased to £17 million. Mr French said (and said repeatedly) that he considered that this would allow Mr Nisbet to meet his liabilities, pay what he owed to Mr French and still make a profit.

[25]The two men had been in regular email or text contact, but on 24th October 2007 Mr Nisbet emailed to say that ‘I’ve lost a lot of time and focus over the last couple of weeks with all our discussions over what I’m doing.’ Nonetheless, the communications continued from both of them.

[26]On 28th October 2007 Mr French sent Mr Nisbet a copy of a letter which he asked him to forward to the Liverpool police. This referred to two attempts to murder relatives of Mr French and to his fear that he himself would be the victim of a murder attempt.

[27]Meanwhile Mr Nisbet had continued his negotiations with potential Joint Venturers for the Crown site. By the end of October draft heads of agreement had been discussed with Harte Holdings and a rather more detailed draft heads of agreement with Byrne Estates, who would have been Mr Nisbet’s first choice.

[28]On 31st October 2007 Mr French again pressed Mr Nisbet to take seriously the idea of selling the Crown site outright. He said that the current offer was £17 million, but he felt that it could be raised to £18 million. Mr Nisbet replied the same day. He said that he was disappointed that Mr French should question his friendship. He said also that the intermediary (Will Labella) who had been used by Mr French had stated that there had been no increase in the offered purchase price. However, Mr Nisbet did not appear to object in principle to the idea of selling the site. He said, ‘As stated, if you can get £18m offer, then I would be more than happy to progress.’ He concluded ‘I cannot be working any harder to try and get a resolution on this and your assistance in getting an £18m would be most appreciated.’

[29]Mr Nisbet continued to explore with Mr Labella the possibility of a sale of the Crown site although there seem to have been complications because of assurances to Manchester City Council that the site would not be sold.

[30]Mr French had not been able to pay the second part of his deposit for the Pan project but he continued to seek an extension of time to do so. On 9th November 2007 Mr Nisbet wrote to Mr French. He apologised for not being able to repay the loans by 1st November On the same date he wrote a letter on behalf of Assets referring to a loan of £13,000 with interest at 20% p.a. The letter concluded ‘As you are aware we shall shortly be concluding a joint venture agreement and we anticipate being in a position to reimburse you the outstanding amount within the next three months.’

[31]Two days later Mr French sent an email to Mr Nisbet setting out what he had understood Mr Nisbet had agreed was owing at the Tai Pan restaurant at the beginning of October. It totalled £1.3million. This was followed by a series of emails, phone messages and text messages from Mr French to Mr Nisbet, one theme of which was that it was ridiculous for Mr Nisbet to say that he felt threatened. On 13th November Mr Nisbet sent a text to say that he wished all further communication to be made via his solicitor. He said ‘I would appreciate no further harassment to allow me to do my job which will enable me to realise cash to pay creditors including S&D’. JST wrote to Mr French in similar terms the same day.

[32]Mr French did continue to send texts, emails and phone messages over the following days.

[33]From about the middle of November, Mr Nisbet was also contacted by two other associates of Mr French, Marlon Campbell and Darren Alcock, who also encouraged him to sell the Crown site. They told him that they were to receive £250,000 each if the transaction went through. Mr Nisbet was puzzled as to why they should be due to receive such large sums. Darren Alcock was also known to have had a criminal conviction for attacking someone with a hot iron. The conviction had been many years previously. Although Mr Nisbet felt somewhat alarmed by the involvement of Alcock and Campbell, he agreed that they had never threatened him.

[34]There is a hiatus in Mr Nisbet’s records of communications between 26th November and 15th December although his recollection was that the alleged harassment by Mr French did subside somewhat at the beginning of December.

[35]On 29th November 2007 Ms Summers wrote to Mr French. She set out the amounts which Mr Nisbet accepted he owed S&D (£118,850 plus interest), noted that ‘Chris is at a crucial stage of negotiations with two potential joint venture partners with Albany Crown Ltd. They are time consuming and have required a fair amount of travel for Chris and his team.’ She called on Mr French not to deflect Mr Nisbet from this work by his alternative proposals. She repeated that he did not wish to have any more communication with Mr French, but she was instructed to provide him with a weekly update if he did desist from direct contact.

[36]On 7th December 2007 Crown signed heads of agreement with Byrne Estates. According to an email from Heather Summers of that date ‘there is now one preferred hotel operator with whom [Crown] will be immediately commencing negotiations’. I understand that that operator was one of the Virgin companies. By 14th December 2007 Mr Nisbet had managed to negotiate a release of some £25,000 from the bank. He arranged for £20,000 of this to be paid to S&D in part discharge of his debt.

[37]Mr French did manage to negotiate an extension of the time for him to make the second part of the deposit on the Pan project. The new deadline was 21st December 2007. As the time for this approached, Mr French again repeatedly expressed his anxiety that Mr Nisbet should pay the money that he thought was due to him. In his email of 15th December 2007 he ended by saying:

‘You are very fortunate to find me at a point were I refuse to go backwards (the temptation to beat you to within an inch of your life i have rose above) I have turned my life around and money is no longer my be all and end all.’

[38]That email was sent a number of times over the next few days to Mr Nisbet and/or Ms Summers.

[39]Ms Summers wrote to Mr French on 19th December 2007. She objected to the barrage of emails as well as texts and calls. She threatened criminal or civil proceedings if the haranguing and undue pressure did not stop. While the debt (which is now the subject of S&D’s claim) was acknowledged, she said that the larger sums claimed by Mr French were refuted.

[40]The 21st December 2007 deadline for Mr French to meet the second instalment of his deposit on the Pan project passed. He was not able to pay. As a result the first instalment was forfeited. That day he left a series of phone messages for Mr Nisbet. These did take on a threatening tone. At 12.20pm the message ended ‘if you don’t call me today, Chris, you personally, call me today and tell me that you’re gonna cover my losses, I’m coming for you mate.’ At 12.21pm (so immediately after the previous call), the message said ‘The fact that you won’t speak to me, the fact that your solicitor won’t answer, the fact that I’ve been asking for an answer to this question for the last 21 days and you’ve totally ignored me, I’ve been absolutely livid, absolutely livid. In fact, I’m mad enough to go to prison. So you’d better call me and tell me that you’re gonna cover my losses otherwise I’m really, really, gonna do something that we both regret.’

[41]At 2.07 he phoned and left a message apologising and promised that he would not harm Mr Nisbet. A yet further message was left for Ms Summers later that afternoon. He repeated his apology. After the message there was a long pause and, it seems, Mr French believed that the recording had stopped. It in fact continued and picked up what appears to have been Mr French talking to himself. He said:

‘I am just not going to let that guy drag me back down. He is trying to make me revert to …that I left behind and I do not want to do any more. Its just that I am absolutely outraged the lying twat. I should never have got involved with him I should have left him alone …(the Stephen of old?) would have blown his head off, but I am not that person anymore. I am against gun (violence and crime?) got to remember that got to try ??’

[42]In a final message at 4.0pm on 21st December, Mr French said ‘you nearly got me to revert to type, you nearly got me to come after ya in a physical way but I’ve managed to calm myself down and I’ve decided to let Pannones [the solicitors for S&D] deal with the bankruptcy.’

[43]Mr Nisbet said in evidence that he contacted the police on 21st December because of Mr French’s behaviour.

[44]Later on 21st December 2007 Ms Summers emailed Mr French with an offer by Mr Nisbet. In summary, if it could be shown that the Pan project would have been profitable for Mr French, Mr Nisbet would reimburse him his lost deposit and his lost profit (Mr Nisbet had repeatedly made clear to Mr French that he thought that the Pan project was an unprofitable deal and, if anything, Mr French was fortunate that he had not been able to throw good money after bad by paying the second part of the deposit). This did not satisfy Mr French as he made clear in his email to her of 27th December 2007. He said that he intended to start bankruptcy proceedings.

[45]Between 6th and 10th January 2008 Mr French left a series of phone messages for Mr Nisbet. These again had a threatening edge. Thus after calling round to Mr Nisbet’s house on the afternoon of Sunday 6th January, he left a message at 4.33pm which concluded, ‘That I can live with you dictating to me about what I can and can not do and losing me over 100k who do you think you are are you really that brave don’t fuck with me any longer.’

[46]At 11.03am on 7th January 2008 his message began, ‘Good morning send me the Friday up dates (something you yourself initiated) or I will come and get updated personally you may be brave in your own little world but when I stand before you what will you do so be a good little boy and do what you said you will do.’

[47]At 7.43pm on 10th January 2008 he said ‘I need to see the back of you so do the right thing and stop fucking around. Let this be over.’

[48]On 11th January 2008 Ms Summers wrote what was effectively a letter before action threatening Mr French with an injunction under the Protection from Harassment Act if he did not stop contacting Mr Nisbet.

[49]It is not clear when Mr French received that letter. He denied that he had done so by the next day (12th January 2008) when he agrees that he attended Mr Nisbet’s home. He says it was twice. Mr Nisbet and his girl-friend, Rebecca Davies Jones, say that it was three times. They allege that he behaved in a verbally aggressive and threatening manner. Ms Davies Jones in a statement made to the police shortly afterwards says that he said things such as, ‘If you call the old bill I will set the boys on you’; ‘Remember if I’m locked up, I have the perfect alibi’; ‘Come out and face me like a man’; ‘you think I’m harassing you now, let me tell you, it’s not even begun’. It is not alleged that either of them was physically assaulted.

[50]Mr Nisbet called the police who came to the property. They spoke to Mr French. At 5.34pm that evening Mr French left a further phone message for Mr Nisbet which said, ‘Hi Chris Stephen, just had a chat with the police n that. I’m on my way home now. Er like I explained to them, it’s about evidence, If there’s no evidence, there’s no case. So it’s as simple as I don’t make threats. Never have done, never will do. I tried to speak to you amicably and friendly. You don’t want to know, you wanna play silly buggers and now you are 100% my enemy. I don’t like you any more brother. See you around.’

[51]About an hour later Mr French returned to Mr Nisbet’s home and shouted more abuse. He left a series of further phone messages. His message at 6.30pm included the following, ‘Listen I’m not one of your white business colleagues you know. I’m a nasty nigger. A real dirty, nasty street nigger. Do you understand?’

[52]On 14th January 2008 Mr French again went to Mr Nisbet’s home in the morning as he and Ms Davies-Jones were about to leave the house in a car. He again shouted abuse at them. She says that as he left he pointed his hand towards Mr Nisbet in a gesture that imitated a gun. Again, it is not alleged that any physical assault took place.

[53]Once again the police were called.

[54]Mr French was charged with threatening, abusive or insulting words or behaviour with intent to cause Mr Nisbet harassment, alarm or distress on 12th and 14th January 2008 contrary to s. 4A(1) and (5) of the Public Order Act 1986. He pleaded not guilty but, on 21st July 2008 he was convicted. He was conditionally discharged for 18 months and ordered to £200 prosecution costs. The Court refused to order compensation because, according to the memorandum of conviction, ‘the complainant is indebted to the defendant by a very large amount, also the considerable provocation by the complainant.’

The Protection from Harassment Act 1997

[55]Section 1 of the Act prohibits harassment. It says:

‘(1) A person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other….’

[56]By s.7 ‘(2) References to harassing a person include alarming the person or causing the person distress. (3) A ‘course of conduct’ must involve conduct on at least two occasions. (4) ‘Conduct’ includes speech.’

[57]Section 2 of the Act makes harassment a summary offence. Section 3 creates a civil remedy for harassment. It says:

‘(1) An actual or apprehended breach of s.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…’

[58]A great deal of the vicissitudes of daily life might cause a person distress, but the courts have been clear that the conduct will not amount to harassment for the purposes of the 1997 Act unless it reaches a particular level. Thus in Majrowski v Guy’s and St Thomas’s NHS Trust

[2007] 1 AC 224

Lord Nicholls said at [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 s.2.’

[59]Baroness Hale said at [66] ‘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.’

[60]In Conn v Sunderland City Council

[2008] IRLR 324

at [12] Gage LJ said:

‘It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses 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. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognizing what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.’

[61]In Ferguson v British Gas Trading

[2009] EWCA Civ 46

Jacob LJ said:

‘17. I accept that a course of conduct must be grave before the offence or tort of harassment is proved. And that, as Mr Porter accepted after some discussion, the only real difference between the crime of s.2 and the tort of s.3 is standard of proof. To prove the civil wrong of harassment it is necessary to prove the case on a balance of probabilities, to prove the crime, the standard is the usual criminal one of beyond a reasonable doubt. 18. In so accepting I would just add this word of caution: the fact of parallel criminal and civil liability is not generally, outside the particular context of harassment, of significance in considering civil liability. There are a number of other civil wrongs which are also crimes. Perhaps most common would be breaches of the Trade Descriptions Act 1968 as amended. In the field of intellectual property both trade mark and copyright infringement, and the common law tort of passing off (which generally involves deception), may all amount to crimes. It has never been suggested generally that the scope of a civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognised, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene.’

[62]In my judgment until 15th December 2007 Mr French’s behaviour did not cross the threshold of gravity necessary to amount to harassment. Mr Nisbet acknowledged his indebtedness to S&D at least to the sum of some £113,000 plus interest. Mr Nisbet recognised that repayment of this sum was overdue and that the failure to repay it was causing acute difficulties for Mr French himself and/or his company. There was or may have been a disagreement as to whether Mr Nisbet owed the very much larger sums which Mr French claimed. These were essentially business disputes and, as Gage LJ. said, the context in which the acts occur is important in determining whether they amount to harassment.

[63]Mr French’s communications were frequent at times. He was persistent in expressing his strongly held view that Mr Nisbet would be better off in selling the Crown site. He was sometimes repetitious. Mr Nisbet and JST Lawyers both wrote to Mr French on 13th November 2007 saying that all further communications should go via the solicitor. The volume of communications from Mr French to Mr Nisbet direct declined. The fact that they did not cease is matter for me to take into account, but is not, in my view, determinative.

[64]I am not persuaded that Mr Nisbet was afraid of Mr French at this stage. Mr French had had a reputation for extreme violence, but that was long in the past. I think that the remark about Mr Moule and Mr Mason probably was an off-hand and was immediately retracted. In any case, though, Mr Nisbet later renewed his friendship and business dealings with Mr French despite this incident. There were no threats from Mr French during this period. Mr French was an international kick boxing champion, but I do not consider that this takes the matter much further. Mr French explained that it was essentially a form of self defence. There is no evidence that he used his skill offensively. The flow of consciousness style which Mr French adopted in his emails, texts and phone messages makes it somewhat easier to perceive his intentions. On the basis of them and his evidence, I do not regard them as intimidatory. Mr Nisbet said that he was frightened by the death threats against Mr French and his relatives, but I found it difficult to understand how these matters, which were (apparently) aimed at Mr French should have led Mr Nisbet to fear Mr French. Neither Mr Alcock nor Mr Campbell threatened Mr Nisbet. Mr Nisbet said that he felt pressured by Mr French into writing his comfort letters of 9th October and 9th November 2007, yet it is striking that neither complied entirely with Mr French’s wishes. Finally, I note that Mr Nisbet did not at this stage go to the police. This contrasts with his reaction to Mr French’s behaviour in on 21st December.

[65]In my view the position changed with the series of emails beginning on 15th December 2007 in which Mr French referred to the temptation to beat Mr Nisbet within an inch of his life. Even though Mr French said that he had risen above that temptation, the express allusion by Mr French to his violent past crossed the boundary. It was no longer merely unattractive and unreasonable but became oppressive and unacceptable. I am strengthened in this view because Mr French sent this same email on a number of occasions.

[66]I have said above that Mr French’s telephone messages on 21st December 2007 took on a threatening tone. These came only two days after Heather Summers’ email of 19th December 2007 which had called on him to stop haranguing her client. I find that the telephone messages which he left on 21st December were further acts of harassment.

[67]The text messages which Mr French sent to Mr Nisbet at 4.33 on 6th January 2008, 11.03am on 7th January and 7.43 on 10th January were likewise oppressive and unacceptable and amounted to further harassment.

[68]Mr French’s visits to Mr Nisbet’s home on 12th January and 14th January were the subject of the criminal conviction. I have set out above the particulars of the charge under the Public Order Act 1986 which he faced. While he was not prosecuted under the Protection from Harassment Act 1997, the acts which he was proved to have done on that day plainly amounted to harassment within the meaning of that Act.

[69]Criminal and civil liability under the 1997 Act arises only if the person concerned ‘knows or ought to know [that his course of conduct] amounts to harassment of the other.’

[70]Whether or not Mr French did know that his conduct amounted to harassment, I find that he ought to have done so. He was put on notice by the email from Heather Summers of 19th December 2007 that his letters of the previous few days had been regarded as haranguing, undue pressure and an implied threat and, if they did not cease, would lead to action in the criminal or civil courts. In any case, and even without that letter, it would have been apparent to any reasonable person that the messages of 21st December and those between 6th and 10th January 2008 which I have mentioned above would amount to harassment. The criminal conviction was dependent on proof that Mr French intended to cause Mr Nisbet harassment alarm or distress on 12th and 14th January.

[71]Civil liability under the 1997 Act only arises if there was a course of conduct which involves conduct on at least two occasions. That condition is plainly satisfied here.

Damages for Anxiety

[72]Section 3(2) of the 1997 Act says that damages can be awarded for ‘anxiety’ amongst other things. In my judgment, Parliament was here intending to make plain that compensation could be given for the concern that harassment can generate even if it does not give rise to any psychiatric or medical condition. Psychiatric harm is a well recognised form of personal injury. Where a statute creates civil liability it would not be usual for Parliament to specify the particular types of physical harm or personal injury which are compensatable. It would go without saying that psychiatric harm (if proved and if satisfying the other usual conditions such as causation and forseeability) would be recoverable. The express reference to ‘anxiety’ must be intended to convey something more. In any case, it would be inapt to use this term if it was intended to be limited to a mental state that was so severe as to amount to an illness.

[73]Ms Dainty on behalf of Mr French and S&D appeared to accept that ‘anxiety’ short of psychiatric harm could be the subject of compensation. However, she submitted in her written argument that even in such cases there ought to be medical evidence. Otherwise, she argued, the court would not be able to distinguish a groundless from a well-founded claim for damages.

[74]I am not sure that she persisted in that position in oral argument. However, in any case, I do not agree with it. If, as I hold, ‘anxiety’ is not limited to conditions which amount to psychiatric harm, medical evidence cannot be the exclusive means of proving the loss. Martins v Choudhary

[2007] EWCA Civ 1379

does not help. Medical evidence had been available in that discrimination case. But the Claimant was there seeking (and was awarded) damages for both psychiatric harm and injury to feelings. That is not the situation in the present case. Evidence of anxiety can instead come from lay witnesses: the victim of the harassment and those around him or her. The court can also take into account what is likely to have been the effect of the harassment in question.

[75]In Majrowski at [29] Lord Nicholls said that damages for anxiety under the 1997 Act would ‘normally be modest’. It is not entirely clear whether this was a matter of competing argument on the appeal. The issue in that case was whether an employer could be vicariously liable for harassment by one of its employees. Lord Nicholls was dealing with the defendant’s floodgates argument. The defendant was arguing that there would be significant difficulties for the employer in dealing with such claims even if damages for anxiety in an individual case were not large. Neither side, it seems, was arguing that damages under the Act would be other than ‘modest’.

[76]Whatever the status of Lord Nicholls’ remark I respectfully suggest that as a prediction it is likely to be correct. If one sets aside cases where psychiatric damage has occurred, the approach of the courts in other areas where compensation can be awarded for anxiety and distress, shows that damages are not likely to be particularly high. In Vento v Chief Constable of West Yorkshire (No.2)

[2003] ICR 318

the Court of Appeal gave guidance as to the level of damages for injury to feelings caused by discrimination. It said:

‘(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii) The middle band between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. (iiii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where an act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.’

[77]I accept Ms Dainty’s submission that it would be wrong simply to apply the same bands to harassment cases. Compensation for discrimination necessarily involves an award for the humiliation of being treated differently on an impermissible ground such as race or sex. That is not a necessary feature of a claim under the 1997 Act. On the other hand, it is an essential characteristic of a claim under that Act that there has been a course of conduct. There will not be a case where damages for harassment have to be assessed for an isolated or one off occurrence.

[78]In the present case, Mr Nisbet gave evidence that Mr French’s behaviour had had a severe impact on him. He had slept poorly. He attended his office infrequently. He had not been able to concentrate. He had been very afraid. He felt oppressed by Mr French’s repeated demands and had done what he could to avoid antagonising him further. He said he had hardly been able to produce any meaningful work. Ms Davies Jones gave evidence that he had not been working in the evenings as he usually did and that he was sleeping poorly. Mr Douglas, Mr Nisbet’s business partner also gave evidence that he had been distracted by Mr French’s activities.

[79]I have concluded that I need to approach this evidence with considerable caution for a number of reasons. The actions of Mr French which I have found to amount to harassment are far fewer and over a much shorter time span that Mr Nisbet alleged. In particular, up to 15th December 2007 I have found that the communications from Mr French did not cross the boundary into the oppressive and unacceptable. It may well have been distracting and stressful for Mr Nisbet to deal with them. The fact remains, however, that on his own case, he owed Mr French well over £100,000. He knew that Mr French was particularly anxious to be paid because he himself was committed to making a second payment on the Pan project and risked losing the first payment in default. Mr Nisbet’s inability to make this payment was symptomatic of his own precarious financial position. It would not be at all surprising if these money problems caused Mr Nisbet to be distracted and to sleep poorly.

[80]Furthermore, I cannot find on the balance of probabilities that Mr French engendered fear in Mr Nisbet until (at the earliest) the actions which I have found to constitute harassment. Mr French’s violent past was behind him when he first met Mr Nisbet in 1996. There is no evidence that Mr French has engaged in any actual violence since then. Mr Nisbet referred to Mr French’s threat to his co-directors in April 2005, but that was followed swiftly by an apology on Mr French’s behalf. Nothing actually occurred. Even if his remarks at the meeting in June 2005 support the case that the remarks had been made, what Mr French was doing was emphasising the withdrawal rather than renewing the threat. More importantly, Mr Nisbet continued to deal with Mr French despite that remark. And in January 2007, their business and friendly relationship revived. In March - September 2007, Mr French provided Mr Nisbet with much-needed financial support.

[81]Nor was I persuaded that the events of September - mid-December 2007 were such as to generate a fear of Mr French in Mr Nisbet. Mr Nisbet did instruct his solicitors to write to Mr French on 19th December 2007 threatening criminal and civil proceedings. He contacted the police on 21st December and again on the occasions when Mr French came to his house. Had Mr Nisbet really been afraid of Mr French earlier in the sequence of events, I see no reason why he would not at that stage have gone to police or threatened proceedings.

[82]That leaves a period of about a month during which I have found that there was a course of conduct amounting to harassment. I have accepted that there was a threatening tone to the messages on 21st December and the ones in early January. I accept that those engendered feelings of anxiety in Mr Nisbet. So, too, must the repeated visits of Mr French to Mr Nisbet’s house. I accept that the contemporary accounts of Mr Nisbet and Ms Davies-Jones give an accurate flavour of the kind of remarks which Mr French made on those occasions. The anxiety and distress which Mr Nisbet must have felt on those occasions would have been prompted in part because of fears for his own safety and in part because of his concern for Ms Davies Jones. I see no reason why damages for this harassment which was targeted at him should not reflect both elements of his anxiety and distress.

[83]So far as foreseeability is a necessary element of a claim for damages under the 1997 Act, it is satisfied. I have found that the course of conduct pursued by Mr French was one which he either knew or ought to have known would cause alarm or distress.

[84]Overall I consider that the right sum to compensate Mr Nisbet for the anxiety which I have found is £7,000.

[85]There was some evidence as to an incident in the Wallasey Tunnel in October 2008. Both Mr French and Mr Nisbet were driving through the Tunnel. It is alleged that Mr French drove in an intimidating manner. Mr French disputed this. It is unnecessary for me to make a finding as to this. It was not pleaded as part of the harassment for which Mr Nisbet was entitled to compensation. The course of conduct pleaded in Mr Nisbet’s defence and counterclaim ran from October 2007 to January 2008 (see paragraph 7). Ms Davies-Jones also alleged that later in 2008 Mr French had behaved in a threatening manner to her at a gym which they both attended. Again this was disputed. Again I need make no findings. Ms Davies-Jones is not a party to the action. Mr Nisbet has not sought to plead this incident.

Damages for financial loss?

[86]Mr Nisbet alleges that because of Mr French’s harassment he was unable to give his full and proper attention to his companies’ business. He claims that he alone was able to negotiate with the potential joint venture partners and hoteliers. Although Heads of Terms were negotiated with two joint venture partners, the harassment meant that he was unable to devote time to the necessary follow-through. In particular, he alleges that he missed a series of weekly internal development meetings on 11th and 25th October; 8th and 22nd November; 6th, 13th and 20th December and 10th and 24th January 2008.

[87]Mr Nisbet’s further says that in consequence of Crown and Assets losing valuable business, he, as the sole shareholder also suffered loss.

[88]Ms Dainty submitted:(a) It had not been shown on the balance of probabilities that any of Mr Nisbet’s companies had failed to secure either a joint venture contract or a hotel contract or suffered delay as a result of any harassment;

(b) there was no scope for the ‘loss of a chance’ principle;

(d) further, this head of loss (if otherwise proved) was reflective of the loss suffered by the companies. As such, Mr Nisbet could not claim it consistently with the principle in cases such as Johnson v Gore Wood

[2001] 1 All ER 481

[89]It will be recalled that because of the order of HHJ Stephen Davies I must determine whether or not Mr French’s harassment caused any delay in the Manchester project and whether or not there is liability for any such delay. If I answered those questions favourably to Mr Nisbet, quantification of loss would be dealt with at a further hearing.

Causation

[90]At this stage, I apply the ‘but for’ test of causation i.e. whether on the balance of probabilities Mr Nisbet has shown that, but for Mr French’s harassment, Crown or Assets would have secured a joint venture agreement and/or an agreement with a hotelier and/or would have made either contract at an earlier stage. At one stage Mr Horne, on behalf of Mr Nisbet, argued that it would be sufficient if the harassment materially contributed to the financial loss. However, he did not pursue that argument at the hearing.

[91]In my judgment, Mr Nisbet has not satisfied the ‘but for’ test.

[92]I consider first the allegation that the harassment caused Mr Nisbet to miss the specified weekly internal meetings.

[93]I note first that only three of these (20th December, 10th January and 24th January) took place after the course of conduct which I have found to constitute harassment began. If indeed Mr Nisbet had missed 6 other internal weekly meetings before then, I cannot be sure that any difficulties he encountered was because of him missing the last three rather than the earlier meetings.

[94]Secondly, it emerged in the course of Mr Nisbet’s evidence that he may have missed at least some of the meetings because of other reasons. He said that the harassment lessened in the early part of December. He said specifically that the meetings that had been due to take place on 6th, 13th and 20th December may have been cancelled for other reasons. The last of these was one of only three internal meetings which had taken place after what I have found to be Mr French’s course of harassment commenced.

[95]The next internal meeting was due to take place on 10th January 2008. In a letter from Mr Nisbet’s solicitor of 11th January 2008 to Mr French she said:

‘As a result of this lost time, Chris had to cancel an important meeting in London scheduled for 10 January with the Joint Venture partner and hotelier and instead had to conduct this meeting by way of telephone conference.’

[96]It must be open to doubt whether an internal meeting could have been held in Liverpool (where the head office of Crown and Assets was located and the internal meetings took place) on the same day as such a meeting in London, but even if it could, it is difficult to see why that meeting (like the one that was due to take place in London) could not also have been conducted by way of a telephone conference instead.

[97]Thirdly, the significance of Mr Nisbet missing these meetings was unclear to say the least. Five of them had or should have taken place before 7th December 2007 when the heads of agreement with Byrne Estates were signed. Mr Nisbet’s witness statement of 21st January 2008 said that before Christmas 2007 excellent progress had been made with both the joint venture and the hotel scheme. In his oral evidence he accepted that the prospects for the joint venture were still good despite his absences from the internal meetings. In his email to Mr French of 31st October 2007 Mr Nisbet said ‘I cannot be working any harder.’ The email traffic showing Mr Nisbet’s personal involvement with the negotiations with Byrne Estates and Harte Holdings at about this time supports this comment. I did not accept his oral evidence in which he said that that statement was incorrect.

[98]Fourthly, it was entirely unclear what was due to take place at these meetings. Mr Nisbet said in evidence that a bullet point list of issues to be discussed was produced, but none of these lists had been disclosed. Other than in the most general terms, Mr Nisbet could not assist in what had been on the agendas for these meetings. Nor was it clear why the meetings could not have been rearranged rather than cancelled.

[99]Overall, I consider that the evidence about the internal meetings provided very little assistance for Mr Nisbet on the causation issue.

[100]Mr Nisbet also produced a survey of emails sent from his office during the period June 2007 – December 2008. In October 2007 there had been 484. In July – December 2008 there had also been over 400 each month. By contrast in November 2007 there had been none. In December 76. There had been no more 6 each month from January – April 2008 and 13 in June 2008. The survey comments ‘All other emails were sent via laptop on separate Outlook account, which proves I was out of the office and house working off a data card.’

[101]It is not quite clear what Mr Nisbet meant by ‘separate Outlook account’. The trial bundle includes several emails sent during November 2007 from the address chris.nisbet@albanyassets.com, which Mr Nisbet said, was his only business email account. So during the month when his survey recorded no emails sent from his office, he was far from inactive. I recall as well that despite the lack of emails sent from his office in November, the heads of agreement were signed with Byrne Estates in early December and ‘excellent progress’ was also made with the hotelier.

[102]Apart from the meetings, the Schedule of Loss is wholly imprecise as to the causal links between the harassment and its impact on the Crown project. Paragraph 6, for instance, says ‘A number of tasks were also delayed due to the ongoing harassment. These were tasks throughout October, November and December which delayed matters by 3 – 4 months and lead to certain offers being withdrawn. Heads of terms were agreed in respect of a couple of joint venture partners which as a result of [Mr Nisbet] being unable to dedicate his full and proper attention to the business these deals did not proceed.’

[103]In his witness statement of 1st April 2009 paragraphs 8 & 9 Mr Nisbet said:

‘The second joint venture partner who could have been progressed was Byrne Estates...However, due to the intervening harassment by Mr French as set out in my earlier witness statement nothing was progressed in relation to the joint venture partners, the hotel agreement on indeed anything particularly on this site from about September/October 2007 through to February / March 2008.’

[104]This comment is not accurate. Mr Nisbet confirmed in his evidence that the heads of agreement with Byrne had been signed on 7th December. It is also inconsistent with paragraph 26 of his first witness statement in which he had said that before Christmas 2007 ‘excellent progress [had been] made with both the JV and the hotel’ and, as a result the bank had released £25,000.

[105]The evidence as to the period over which Mr French’s harassment was alleged to have impacted on Mr Nisbet was also inconsistent. Mr Nisbet’s witness statement of 1st April 2009 said that he had been unable to work between October 2007 and January 2008 (paragraph 10) or February 2008 (paragraph 24). In cross examination, however, he said that it was only in July 2008 that he went back to work full time. This change appears to have been prompted by the email survey which, as I have already mentioned, appeared to show a substantial diminution in emails being sent from Mr Nisbet’s office between November 2007 and June 2008. However, if Mr Nisbet’s performance had been affected until July 2008, I find it remarkable that not only he but also Ms Davies Jones and Mr Douglas in their witness statements of 1st April 2009 should have spoken of the impact lasting only until February 2008. This reinforces my scepticism as to the usefulness of the email survey. It also, I am afraid, underlines my concern as to Mr Nisbet’s tendency to exaggerate. In his oral evidence, Mr Douglas said that the impact of the harassment had continued through to March or July 2008. The inconsistency between this and his witness statement made me doubt the reliance which I could place on his evidence.

[106]There were two other parts of Mr Nisbet’s evidence which have led me to be cautious in accepting his evidence.

[107]The first was a passage at the beginning of his first witness statement where he said ‘My background and qualifications are as a Quantity Surveyor.’ In cross examination he said that he had spent three years studying quantity surveying, but he then left to go into business. He did not complete the degree or have any other qualifications in quantity surveying.

[108]The second was his explanation as to why he did not go to see his General Practitioner when (on his account) his anxiety about Mr French’s harassment was preventing him from sleeping and working. He said that he did not want to explain to the GP that Mr French had threatened his life because he wanted to be able to look to the GP to provide a medical report in support of an application for life insurance. He feared that he would not be offered life insurance if the GP included in the report a reference to his belief that his life had been threatened. There are two alternative conclusions to be drawn from this. One is that he positively wished to conceal from the life insurer information which he knew to be relevant. The other is that he did not really believe his life was under threat. Neither reflects well on Mr Nisbet’s credibility.

[109]Mr Nisbet’s witness statement of 1st April 2009 produced copy emails of 18th October 2007 and 23rd October 2007 which he said showed that heads of terms had actually been agreed. I have mentioned above that in his oral evidence, Mr Nisbet said that Heads of Terms with Byrne Estates were finally agreed on 7th December 2007. A copy of those final terms was not produced in evidence. I do not know to what extent they differed from the attachment to Mr Nisbet’s email of 23rd October, but at several points that document alludes to the need for further details. This document aside, there is no evidence at all from Byrne Estates, nor from their agent, Grant Thornton. In the course of his evidence, Mr Nisbet said that Byrne never exchanged contracts and in March or April 2008, they pulled away. It is a curious (an unsatisfactory) feature of Mr Nisbet’s April 2009 witness statement that it said nothing about these developments let alone why they happened. I certainly have no independent evidence as to why this was, whether it had anything to do with Mr Nisbet being distracted by Mr French’s activities or whether there was some other reason. The 23rd October 2007 draft contemplates that various conditions had to be fulfilled before exchange of contracts would take place. I do not know whether exchange failed to take place because one of these conditions (or some other condition) was not fulfilled and, if that was the case, why the condition was not fulfilled.

[110]Ms Dainty is also entitled to make the point that at least three of Mr Nisbet’s companies (Crymark, Albany Building and Albany Irwell) either went into liquidation or receivership.

[111]Overall I am very far from being persuaded on a balance of probabilities that, but for the course of conduct which I have found Mr French committed, Mr Nisbet’s companies would have secured a joint venture contract or would have done so sooner.

[112]The evidence as to the development of relations with hoteliers was even thinner. In the autumn of 2007 there were negotiations with Virgin. I have very little information about their progress. I have mentioned above Mr Nisbet’s witness statement which said that excellent progress had been made with the hotelier (as well as the JV) by Christmas 2007. I also note that in the course of the trial an email was produced from Heather Summers dated 22nd March 2008. It said that heads (I assume of agreement) had been signed with a hotelier. Mr Douglas said that this was with Virgin.

[113]Once again I am unable to find that delay (if there was any) in reaching agreement with a hotelier was due to the harassment by Mr French.

Loss of a chance

[114]Normally a claimant must prove that but for the defendant’s wrongdoing he would have gained the advantage for which he seeks compensation. This is compatible with the underlying purpose of damages in tort which is to put the claimant in as good a position as if the tort had not been committed.

[115]The ‘loss of a chance’ doctrine modifies the ‘but for’ test where the advantage in question depends on the hypothetical action of a third party. If there was a substantial chance that the third party would have acted so as to confer the benefit then the claimant is entitled to a percentage of the benefit to reflect what the Court judges to be the chance that the third party would have so conferred it – see for instance Allied Maples Group Ltd v Simmons and Simmons

[1995] 1 WLR 1602

CA. Mr Horne invokes that principle in the present case.

[116]Ms Dainty submitted that the wording of s.3(2) of the Protection from Harassment Act 1997 (‘financial loss resulting from the harassment’) excluded the operation of the loss of a chance principle. I do not accept that argument. One way of viewing the principle is as a means of quantifying loss which results from a wrong in particular circumstances. On that basis, the language of the Act does not preclude the principle’s operation.

[117]Nonetheless, in my judgment, there are several reasons why the ‘loss of a chance’ principle does not help Mr Nisbet.(a) Where the tort takes the form of a positive act, the Claimant must prove on the ordinary balance of probabilities what its impact was on him as a matter of historical fact - see Allied Maples above at p. 1609. Here I have accepted that Mr Nisbet was caused anxiety by the conduct of Mr French which constituted harassment – between 15th December 2007 and 14th January 2008 but I am not persuaded that this conduct led Mr Nisbet to be disabled from working during that period. At most I consider that it constituted a distraction.

(b) Even in cases where the Claimant can rely on ‘loss of a chance’ he must prove on the balance of probabilities that he would have been able and willing to have done what was necessary on his part to achieve the benefit but for the tort. Thus, for instance, where a claimant alleges that his solicitor’s negligence has led to the loss of a chance of successfully litigating against a third party, the claimant must be ready to prove that (if properly represented) he would have pursued the claim. If he lacked the financial means to litigate in any event, the ‘loss of a chance’ principle has no part to play. I have already indicated that the heads of agreement with Byrne Estates is not in evidence. I know little about what further conditions had to be fulfilled for them to be translated into exchanged contracts. Mr Douglas said in evidence that it was necessary for a valuation to be prepared, but that was something which they would have commissioned others to perform. The valuation would not have been by Assets or Crown in house. It was unclear to me why this commission could not have been initiated by Mr Douglas. Absent the final heads of agreement, I could not tell whether there were other conditions that needed to be completed before exchange with Byrne Estates took place. Correspondingly, Mr Nisbet has not proved that, in the absence of Mr French’s harassment, he (and Crown and Assets) had or would have been able to complete all the conditions which were their responsibility.

(c) Thirdly, there is the dearth of evidence as to why Byrne Estates pulled out. This means that Mr Nisbet cannot prove that this step was due to his inactivity brought about by Mr French’s harassment. In any case, it also has the consequence that I simply lack any evidential basis on which I could assess the chance that such a contract would have been achieved in the absence of harassment.

Reasonable foreseeability and reflective loss

[118]Because I consider that Mr Nisbet has failed to prove the necessary causal links between Mr French’s harassment and any financial loss, the further issue of foreseeability of financial loss does not arise. Nor need I resolve the difficult issue of whether Mr Nisbet would anyway be debarred by the principle of reflective loss.

Vicarious liability of S&D for the harassment of Mr French

[119]The House of Lords held in Majrowski that an employer could be vicariously liable for the harassment of its employee. It was not disputed in the present case that S&D could be vicariously liable for the harassment of Mr French if he acted as the company’s agent and within the scope of his authority.

[120]Mr French is and was a director of S&D. The other director was his wife Dionne French. In her witness statement of 8th April 2009 she said ‘I am able to confirm that Stephen French, my husband, was not authorised by S&D to try and recover monies owed by Nisbet to S&D. Any actions that he took were on his own account and had absolutely nothing to do with S&D. In fact, if I had been aware of what it is alleged Stephen had done I would have taken steps to stop him from continuing to act in that manner.’

[121]However, in her oral evidence she said that she was aware that money had been lent to Mr Nisbet. She knew that its repayment was needed in order to meet the second instalment of the deposit on the Pan project. Critically, she accepted that she left everything to do with the recovery of the debt to Stephen, ‘Getting the money back was a matter for Stephen.’

[122]I have no hesitation in accepting that her oral evidence is the more likely to be true. I conclude that Mr French was the agent of S&D for the purpose of taking steps to recover the debt. Plainly, it was left to his judgment as to how this should be done. His harassment of Mr Nisbet was part and parcel of his attempts to do just that. Accordingly, I find that his harassment was within the scope of his actual authority. S& D is vicariously liable for his tort.

Set off

[123]A cross claim may constitute an equitable set off if it flows out of, and is inseparably connected with, the dealings or transactions which give rise to the subject of the claim and if it would be manifestly unjust to allow one to be enforced without regard to the other – see Bim Kemi AB v Blackburn Chemicals Ltd [2001] 2 Ll.Rep. 93 CA.

[124]In this case the harassment did flow out of Mr French’s attempts to recover the debt which is the subject matter of the claim. There is an obvious and inseparable connection between the subject matters of the claim and counter claim. In my judgment it is also obvious that it would be manifestly unfair to allow S&D to enforce the full amount of its judgment debt without giving allowance for the damages that I have determined they must pay for Mr French’s harassment.

[125]It was somewhat faintly argued by Ms Dainty that Mr Nisbet should not be allowed to rely on equitable set off since he did not come to court with ‘clean hands’. It was submitted that his outstanding debt disentitled him to invoke equity. I reject this argument. The failure to pay a debt owed in law does not debar a litigant from relying on equitable principles.

[126]I will hear submissions as to how precisely my award affects the balance of debt owed by Mr Nisbet. My preliminary views, subject to those submissions, are that, the principal sum of the debt will be reduced by £7,000 as of 14th January 2008 and the interest due to S&D must also be reduced accordingly. The damages will also carry interest pursuant to s.35A of the Supreme Court Act 1981. Again, I will be grateful for submissions as to how this should be quantified.

Further proceedings and stay

[127]Because of the decisions to which I have come, there will be no need for expert evidence and (apart from the matters to which I have alluded in the previous section) no need for any further proceedings after this judgment has been handed down. Once judgment has been handed down, I propose to lift the stay on the enforcement of the balance of the debt owed by Mr Nisbet. Summary of conclusions

[128]In summary, therefore, I conclude as follows: a) Mr French did engage in a course of conduct which amounted to harassment. That ran from 15th December 2007 – 14th January 2008. b) The harassment caused Mr Nisbet anxiety and distress. c) I award Mr Nisbet £7,000 in damages against Mr French. d) S&D Property Investment Ltd. authorised Mr French to take action to collect the debt due from Mr Nisbet. The harassment was within the scope of this authority. S&D is vicariously liable for it and is therefore also liable to pay Mr Nisbet £7,000 in damages. e) Mr Nisbet has not proved on the balance of probabilities that any financial loss resulted from the harassment. He is not assisted by the loss of a chance principle. f) The damages awarded to Mr Nisbet can be set off against the judgment sum already awarded to S&D. There will need to be further adjustments for interest. g) There is no need for any further hearing (save for finalising the consequences of this judgment). Mr Nisbet’s application to call expert evidence is refused. h) The stay on enforcement of the judgment in S&D’s favour will be lifted.