Andresen & Anor v Lovell [2009] EWHC 3397 (QB)

[2009] EWHC 3397 (QB)Case No HQ09X03495
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 December 2009
Before
THE HONOURABLE MR JUSTICE EADY
Between
(1) JENNY ANDRESENClaimants(2) ANNE ANDRESENClaimantPAUL LOVELLDefendant
Zoë Barton (instructed by Taylor Hampton LLP) for ClaimantsKerry Bretherton (instructed by YVA Solicitors) for DefendantHearing Hearing date: 10 December 2009
JudgmentMr Justice Eady :
[1]This is a rather unusual case involving a large number of disputed issues between family members. No one emerges with much credit. The original (First) Claimant was the Defendant’s niece, Jenny Andresen now aged 33, who brought a claim seeking an injunction under the Protection from Harassment Act 1997. There is no claim for damages in respect of any allegations of past wrongdoing, but only for injunctive relief against possible future acts of harassment. On 26 October permission was given to join her mother as Second Claimant (for reasons I shall address in due course).[2]It is provided by s.1(1) of the statute that:
“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.”
Under the rubric “Civil remedy”, s.3(1) states that:
“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.”
The words in square brackets were substituted by the Serious Organised Crime and Police Act 2005. (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.”[3]It would thus appear that, as at 3 August 2009, the First Claimant envisaged herself as the potential victim of a course of conduct by the Defendant which would constitute an offence under s.1(1) and s.2 of the Act.[4]So far as concerns herself directly, she appeared to be relying on two primary allegations. First, there was an incident nearly 20 years ago, when he is said to have stood against her and stroked her shoulders in a “creepy” way. She would then have been aged about 14. This allegation was raised for the first time on or about 1 May this year and is denied.[5]Secondly, the Claimant relies upon an incident occurring on 23 April this year, when the Defendant visited the premises where she and her mother (his sister) both worked. He asked to see her mother. He was concerned at that time about the apparent disappearance of £20,000 which he had entrusted to his sister for the purposes of carrying out repairs and improvements at their mother’s home after she suffered a fall. He believed that his sister had helped herself to at least part of those funds, the balance of which she was supposed to return to him when the works were completed. Be that as it may, when the Defendant called at the premises his sister happened to be out and his niece told him that she would be back later. There is no suggestion that he knew that his sister was absent at the time, or that he had chosen to visit at that particular moment in order, in some way, to target his niece. According to his evidence, he was there for no more than a minute and his niece was quite normal in her manner. Yet this apparently inconsequential visit is said to have shaken her to such an extent that she could not then bear to be left alone on the premises.[6]These proceedings were commenced as a Part 8 claim on 3 August of this year and an ex parte application was made before Hickinbottom J on the same day. An interim injunction was granted until a return date of 17 August, when the matter came back before Blair J. Again, the Defendant did not appear and was not represented. He had left the country on 2 August to attend the funeral (in the Philippines) of his former wife’s mother. Although he was notified of the order by email, it seems that there were difficulties in reading some of the attachments. He did not apply to the court for an adjournment or request a postponement from the First Claimant’s solicitors. It may not have occurred to him to do so. He did, however, say in an email on 9 August that he was intending to return. The injunction was continued in the Defendant’s absence, on 17 August, and an order for costs was made against him. Later that day he returned to Heathrow, where he was arrested at the instigation of his sister and her husband. He was kept in the cells overnight but, following interview, was released and no charges were preferred against him.[7]In view of his temporary absence, it remains unclear why it was thought necessary to apply for and obtain an injunction on an urgent basis. With what might seem to be indecent haste, the First Claimant served a statutory demand within two days of the costs order under s.268(1) of the Insolvency Act 1986. The costs had been assessed at £15,666.09. This is particularly unattractive in view of the fact that the Claimants’ solicitor had been instructed to tell the court that “ … it appears that the Defendant must have got wind of the fact that we were about to make the application for an injunction which is why he left the country shortly afterwards” (emphasis added).[8]The court was thus deliberately given the impression that the Defendant had “done a bunk”. This is curious, not least for two reasons. First, if true, his absence would rather reduce the need for an urgent injunction, at least before the facts could be fully established. He would be unlikely to pose, from afar, an immediate or continuing threat of harassment. Secondly, the information that he had left the country came from his mother (being also the mother of the Second Claimant). She knew perfectly well that he had left to attend the funeral. It remains unclear why they utilised her information that he had left the country but either withheld the reason or failed to ask his mother why he had gone – before asserting that he was escaping the court’s jurisdiction. The explanation offered in court was feeble. It was said that the Claimants did not want to embroil the elderly mother in a family dispute. That is disingenuous since, when she imparted the information that he had gone away, all that was required was to ask why or where he had gone (if she had not already volunteered it).[9]By an application notice dated 11 September, the Defendant now asks that I should strike out the claim or give summary judgment in his favour. He also asks that the injunction of 17 August be set aside on the ground of non-disclosure of material facts or because the Judge did not have the full circumstances before him. In the light of the evidence now advanced on the Defendant’s behalf, it is submitted, the criteria for interim relief cannot be said to have been fulfilled. This was the first opportunity for the Defendant to put his side of the case. It is recognised by both sides that his two applications are at least closely interlinked.[10]The factual background should not be oversimplified. I need to explain how it came about that on 26 October permission was granted for the original Claimant’s mother, Anne Andresen, to be added as a claimant. That is partly because some of the allegations of harassment, and especially those said to justify urgent ex parte relief, would seem to have been of more immediate concern to her and her business than to her daughter. Moreover, she wished to have the opportunity of denying allegations made against her in the Defendant’s evidence.[11]It is not sought to strike out the claim she now makes. On the other hand, if the application to discharge the injunction obtained by her daughter is successful, she would wish to apply on her own account for an injunction to be granted in similar terms to prevent any further harassment of herself. If necessary, the Defendant has indicated that he would be willing to give undertakings to that effect (without any admissions).[12]There is no doubt that the Defendant was, at least in part, the author of his own misfortune, since he unwisely published allegations on the Internet to the effect that his sister’s business or businesses had closed down following investigations into fraud. He chose to make allegations about the three linked businesses known as Housekeepers of Hitchin, EcoCleans and PetCare4You. This was via three similarly named websites, one of which he closed down and the other two he “parked” (so that they were no longer active). This information was known to the Claimants by the middle of July, but it was wrongly withheld from the court before both Hickinbottom J and Blair J. It was plainly a relevant factor as to the urgency, or otherwise, of the need for injunctive relief and, in particular, the supposed need to proceed in the Defendant’s temporary absence.[13]He had been asked in a letter of 14 July (from “Injunctions Online”) to close down the two websites alleging fraud. As he himself put it, “Since I complied fully with the request, I am at a loss to know why the injunction was issued”. But it is worth noting two points. First, two of the sites can still be accessed via a search. I see no reason why they cannot be removed altogether. Secondly, the Defendant’s responses (of 26 July and 9 August) to formal letters sent on the First Claimant’s behalf were rather eccentric and bombastic and did not appear to be as compliant or co-operative as they should have been. Yet neither of these factors would justify the grant of an injunction in itself. They did not evidence threats of harassment for the future.[14]It remains something of a mystery why the Defendant’s niece, rather than his sister, launched proceedings for the protection of the business. She describes her limited involvement in these terms:
“I … started working with my mother in her cleaning business in 2008. I dealt with the sales ledger and general administrative jobs on a part time basis.”
It is thus not immediately apparent what her locus standi was to bring proceedings to the extent that the objective was to protect the business from the Defendant’s false Internet postings. It may be that the reference back to the allegation of 1990 was intended to give her claim more substance. It has been suggested on the Defendant’s behalf that this tactic may have been adopted in order to protect the Second Claimant (as she now is) from an adverse order for costs. I cannot say whether this is so or not, but no clear explanation has so far been put forward.[15]The First Claimant gave in her first affidavit of 31 July an account of the Defendant’s background and of her mother’s relationship with him, which can only been based on what she has been told by her mother or upon speculation. She asserts, for example, that “The Defendant has never had a normal relationship with a woman”. She also included the following allegation:
“The Defendant later married a woman called Eveleyn, known as Ellen for short. I do not know the exact date of this marriage, but the family learned about it in 1996.”
This is very odd when one sets alongside it the unchallenged facts that the marriage took place on 21 June 1995 and that the First Claimant herself attended it (together with her then boyfriend and parents). The Defendant has exhibited a photograph of them all present on that occasion. What is more, the Defendant remained married to the same woman for 14 years before a divorce which took place in May of this year. According to his evidence, however, he is now reconciled to her and living with her once again. This demonstrably false allegation about the wedding naturally suggests that her evidence needs to be approached with great caution. It is another example of the court having been misled.[16]The First Claimant also made a number of other accusations against the Defendant based on rumour, speculation or various degrees of hearsay. There is included, for example, a suggestion that her parents had been told by two people in the Philippines (whom it is not necessary for me to name) that “They were concerned that he would seriously injure or kill someone if he did not receive help”. This appears in her affidavit under the heading “Concerns for the Defendant’s Mental Health – 2008”. She also asserted, as at 31 July, that the police “intend to arrest the Defendant shortly”. All of this general character assassination was no doubt intended to bolster the claim for an injunction, but the serious, wide-ranging and contentious nature of the allegations tends to underline the importance of both sides being heard.[17]I must first address the question of whether a cause of action is disclosed which would, at a trial, justify granting the relief sought by the First Claimant. There are so far no particulars of claim, but only a claim form seeking an injunction under the 1997 Act to prevent the Defendant from contacting the Claimant and any of her relatives (save for his own mother). The First Claimant was thus seeking an order which would have the effect, inter alia, of preventing the Defendant from contacting his sister (without, originally, her being a party to the proceedings herself). It would clearly have the indirect consequence of preventing his pursuing with her any further enquiries about his £20,000. The only grounds identified (in the application notice of 3 August) were that “the Respondent has been harassing the Applicant and her family”. The particulars of those allegations are contained in the first affidavit. When one strips away the general accusations to which I have referred, one is left with a historic allegation of “stroking” in 1990 and the brief visit to the business premises on 23 April 2009. Those do not seem to me to lay the foundation for a claim under the provisions of the 1997 Act.[18]Even if the Defendant were as weird and unstable as the First Claimant suggests in her evidence, it would not give her a cause of action. One therefore suspects that much of the unsubstantiated rumour and hearsay was included to pad out and disguise the exiguous nature of those allegations directly relevant to herself. I do not, of course, underestimate how disquieting an unwanted grope from a “creepy” uncle might be for a 14-year-old girl. Without the allegation having been properly tested, I cannot conclude that the incident actually happened, but for present purposes I should proceed on the assumption that it is or may be true. There would, so far as it goes, be a triable issue (applying the American Cyanamid test). If it happened, however, it was an isolated incident nearly two decades ago and one which has never been raised before. (The point was taken on the Defendant’s behalf that any such occurrence would have been seven years prior to the enactment of the Protection from Harassment Act, but that is not in itself a decisive factor.)[19]What matters is that it was a “one off” event, many years ago, and thus would not justify the grant of an ex parte injunction on an urgent basis in August 2009. Not only was it raked up for the first time within weeks of the Defendant’s return to the United Kingdom in March of this year, and of his seeking answers in relation his £20,000 but, when the police (and child protection officers) became involved, the story seems to have been hyped up beyond the First Claimant’s own description. It became elevated somehow to “intent to rape”. It may be that this phrase was put in evidence in the hope that it would compensate for the absence of any current threat of harassment.[20]The incident of 23 April, as described above, could not amount to harassment in itself.[21]Reference was made in the First Claimant’s witness statement to text messages sent by the Defendant to her father (who does not himself complain of harassment) and, in particular, to a brief comment about the First Claimant’s daughter’s sixth birthday. He apparently said “Nice age 6”. The Second Claimant refers to a text of 2 June to similar effect. It is not clear to me whether this was one text or two, but it makes little difference. From this the court is invited to infer that he is a paedophile who posed a current threat to the child. This seems a step too far.[22]The Second Claimant says that the Defendant made sexual advances to her in 1982. Again, I cannot determine where the truth lies over this accusation, but it is even more historical. I put it to one side because it seems to have no bearing on the immediate question as to the August injunctions.[23]A more general complaint made by the First Claimant is that “The Defendant has bombarded us with emails, text messages, letters and phone calls”, but later she made it clear that this occurred in May and June. His response was that “Those emails and letters which I sent were confined to seeking updates in relation to the £20,000 fraud”. Much of this appears to stem from the fact that he was told by the Second Claimant that “ … money had been stolen from all her business accounts and her personal account including my £20,000”. In any event, several weeks seem to have elapsed after the “bombardment” and before the obtaining of the injunction on 17 August.[24]That leaves the Defendant’s behaviour over the website allegations relating to the Second Claimant’s business. This seems to have been spiteful and irresponsible. It may have been motivated by his resentment over the missing £20,000 but that is no excuse. It may also be that the Second Claimant herself would have been entitled at some stage in June or July to injunctive relief to protect her business on the basis of one or more causes of action (possibly harassment, malicious falsehood or defamation), but she made no such attempt. If that was the true gravamen of the Claimants’ complaint against the Defendant, it would have better for the Second Claimant to bring proceedings in her own name and to concentrate on that – provided that a real and continuing threat could be established. Yet proceedings were not launched, even by the First Claimant, until three weeks after the websites had been taken down or “parked” and, at that time, the focus was directed towards the First Claimant rather than protecting the business – hence the raft of allegations about mental health and sexual deviance.[25]At all events, I have come to the conclusion that the First Claimant lacked the necessary ingredients to establish a cause of action based upon harassment of her by the Defendant. That in itself would justify dismissing her claim.[26]Moreover, there seem to have been at least three examples of the First Claimant failing to comply with the duty of full and frank disclosure upon a claimant for ex parte relief. First, there was the misleading evidence about the Defendant’s wedding. I have referred to the photograph of the family group, taken after the ceremony on 21 June 1995. In her closing submissions, Ms Barton accepted on her client’s behalf, as indeed she had to, that the suggestion that the family only found out about the wedding the following year was simply false. What its relevance was supposed to be remains unclear, but plainly the First Claimant (or her mother perhaps) thought it supported her case: otherwise she would not have mentioned it. I presume it was intended to give an impression of secretive behaviour, suggesting that he had something to hide. No explanation was offered for the false statement. It was not said, for example, that the Claimants had both forgotten that they were at the wedding. It is hardly likely that a woman would overlook the fact that she had attended her own brother’s wedding, or his 19-year-old niece that she had also been present. The question remains outstanding as to why the court was misled in this way.[27]The court was also misled, as I have said, by the suggestion that the Defendant had escaped the jurisdiction on 2 August, rather than having gone to a family funeral (“ … which is why he left the country shortly afterwards”). Furthermore, if the Claimants were truly unaware of the Defendant’s imminent return, it is yet to be explained how the police were waiting for him at Heathrow at 5.30pm on the very same day the injunction was granted and came on board the aircraft as soon as it landed.[28]Thirdly, it was a crucial omission not to tell the court, either on 3 August or on the return date, that the threat from the websites had receded three weeks before, when they had been taken down or rendered inactive.[29]It is thus clear that the heavy duty upon an applicant in these circumstances was not properly discharged. In my view, it would be right to set aside the injunction of 17 August for non-disclosure, or lack of frankness, in the respects I have identified.[30]In any event, so far as the First Claimant is concerned, her allegations do not provide a solid basis for apprehending any harassment of her by the Defendant at or after the time the proceedings were launched. Her claim stands, therefore, to be struck out as disclosing no cause of action.[31]The Second Claimant came on the scene remarkably late, on 26 October, but I have yet to hear her counsel’s submissions on why, now, she should be granted an injunction to protect her in respect of any imminent or continuing threat. It is nonetheless plainly desirable that the parties keep out of each other’s way and do not communicate except when necessary, for example in connection with matters of genuine family concern or the resolution of the financial dispute. It would also be sensible to avoid incurring further legal costs which I understand they can ill afford.