Hall v Fox [2012] EWHC 2210 (QB)

[2012] EWHC 2210 (QB)

Case No HQ12X01171

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/07/2012

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(sitting as a Judge of the High Court)

Between

MICHAEL HALLClaimant

KEVIN FOXDefendant

Paul Emerson (instructed by Davenport Lyons) for claimant

The defendant in person for in person

Hearing Hearing dates: 17, 18 and 19 July 2012

Judgment

[1]The claimant in this action, Mr. Michael Hall, is a property developer. He is also the chief executive officer of a company called Obsidian Capital. As I understand it, Mr. Hall holds shares in a number of limited liability companies through a vehicle called Finecourt Investments Ltd. (“Finecourt”), which he described in his oral evidence at the trial as a family trust. In fact it appeared that Mr. Hall and his family held 50% of the shares in Finecourt, with the balance being held by Mr. Anish Aggarwal.

[2]The defendant, Mr. Kevin Fox, is a security consultant. He was born on 5 March 1967, and so is now aged 45 years. Although he told me in his evidence at the trial that he had worked as a security consultant for many years, there was an unhappy stain on his curriculum vitae. On 27 May 2004 Mr. Fox, as he admitted to me, was involved in the theft of a quantity of gold from Johnson Matthey. He, and some associates, were arrested in the course of making their escape. In due course, on 2 March 2006, Mr. Fox was convicted at the Crown Court at Woolwich of one count of theft and two counts of having a firearm with intent to commit an indictable offence. He was sentenced to a total of seven years imprisonment. He has no other criminal convictions.

[3]It appears that one of the investments which Mr. Hall, perhaps through Finecourt, had made in about 2000 was in a company called Trafalgar Security Services Ltd. (“Trafalgar”). That company seems to have specialised in the provision of security at the entrances to places of entertainment. The managing director was Mr. Ian Wilson. Mr. Hall, it seems, was also a director. The business did not prosper and a resolution was passed by the board of directors of Trafalgar – effectively Mr. Wilson and Mr. Hall – on 23 March 2002 to place Trafalgar into liquidation. Mr. Hall had by that time come into contact with Mr. Terence Neil and his wife, Soraya. The three of them decided to seek to continue the business of Trafalgar through a new corporate vehicle. This vehicle appears to have been called, originally, Manage Security Services Ltd. (“Manage”), although it appears to have changed its name subsequently to TSS Security Ltd. (“TSS”).

[4]When Mr. Wilson became aware of the intentions of Mr. Hall with regard to continuing what had been the business of Trafalgar the question arose of Mr. Wilson’s position. A written agreement (“the Wilson Agreement”) was entered into between Mr. Wilson and what was described at the head of the written agreement as “TSS Trading Ltd. (Manage Security Services Ltd.)(“TSS”)”. The Wilson Agreement seems to have been drawn up without the benefit of legal advice. It contained the following provisions which are presently material:- “1. Ian Wilson or his nominated company will receive a total of £87,500 over the first year’s trading of TSS. This will be payable in equal installments [sic] starting one month after commencement of trading by TSS. No contract of employment will arise from this payment. 2. Ian Wilson will devote not less than an average of 10 hours per week (over eleven four week cycles during this period) to the affairs of TSS, giving attention to business promotion and cash flow control as priorities, and generally as requested by TSS Management. Remuneration, on a self-employed consultancy fee basis, for this involvement in the company will be fixed from time to time with TSS Management but shall commence at a rate not less than £10.00 per hour. On days worked for TSS a Travel Allowance of £4.10 per day may be claimed. 3. Any door work performed by Ian Wilson will be as an independent contractor under standard TSS conditions attaching to such work, at a rate of not less than £10.50 per hour. 4. On completion of the third month of trading by TSS Ian Wilson may subscribe for and TSS shall allocate TSS shares at par fully paid to Ian Wilson or his nominated company amounting to 2.5% of the issued share capital of the company at that date. 5. … 6. TSS will pay Ian Wilson or his nominee a fee of 15% of the gross profit (sales revenue less direct expenses) earned from any business contracted by TSS which is originated by Ian Wilson, with such origination being recognised in writing between TSS and Ian Wilson at the time the contract is signed. Any disputes on this will be referred to the TSS Auditor whose decision will be final.”

[5]The Wilson Agreement was signed by Mr. Wilson and by Mr. Hall, as it stated on the document, “For and on behalf of Manage Security Services Ltd.”. Those signatures were witnessed by Mr. Mason Haynes and by Mr. Mal Barter. Mr. Wilson dated his signature 18 March 2002, while Mr. Hall dated his 18 February 2003. The copy of the document which was adduced in evidence was a copy which had been sent by facsimile transmission and bore a header evidencing that it had been so sent on 19 March 2002, so it would seem that the Wilson Agreement was actually signed on 18 March 2002.

[6]It seems that Mr. Wilson accepted that he had been paid £20,000 out of the sum of £87,500 mentioned in clause 1 of the Wilson Agreement, for he subsequently entered into an agreement (“the Assignment Agreement”) dated 23 January 2012 with Mr. Fox which included these provisions:- “WHEREAS the cedent has claims against Michael D W Hall on behalf of TSS Trading Limited (Manage Security Services Ltd.) (the debtor) as detailed below, as recorded in an agreement between the cedent and the debtor on 18 March 2002 i) The balance of Sixty Seven Thousand Five Hundred Pounds; ii) TSS Shares at par fully paid amounting to 2.5% of the issued share capital as at the date of subscription; iii) 15% of the gross profit earned from any business contracted by the debtor and originated by the cedent. (hereinafter collectively referred to as “the said claim”); AND WHEREAS the cedent has sold to the cessionary the cedent’s right, title and interest in and to the said claim. NOW THEREFORE IT IS AGREED as follows 1 Cession In execution of the abovementioned contract of sale, the cedent hereby cedes, transfers and makes over to the cessionary the cedent’s right, title and interest in and to the said claim. 2 Authority The cedent hereby authorizes the cessionary to notify the debtor of this cession. 3 … 4 Acceptance The cessionary hereby accepts the said cession upon and subject to the terms and conditions of this agreement.”

NOW THEREFORE IT IS AGREED as follows

[7]The language of “cession”, “cedent” and “cessionary” appears to reflect the fact that the Assignment Agreement was drawn by solicitors in South Africa. The person named as the “cedent” in the Assignment Agreement was Mr. Wilson, whilst Mr. Fox was named as the “cessionary”. On the face of the Assignment Agreement Mr. Wilson had assigned to Mr. Fox the outstanding rights which he had under the Wilson Agreement, and it had been agreed that Mr. Fox would notify Mr. Hall of the assignment.

[8]This action arose out of Mr. Fox’s attempts to notify Mr. Hall of the assignment and to obtain performance by Mr. Hall of what were contended to be his outstanding obligations under the Wilson Agreement. The action was not concerned with any issue as to whether the Assignment Agreement had been effective to transfer to Mr. Fox any rights of Mr. Wilson under the Wilson Agreement, or whether any of the alleged rights of Mr. Wilson under the Wilson Agreement remained valid and enforceable, either against Mr. Hall or against anyone else.

The claims made in this action

[9]In short, it was contended on behalf of Mr. Hall that Mr. Fox went about seeking to inform him of the Assignment Agreement and to induce him to perform his alleged outstanding obligations under the Wilson Agreement in a manner which amounted to harassment. Mr. Fox denied that, contending that everything which he had done had been reasonable.

[10]There was considerable common ground as to what Mr. Fox had done in terms of contacting, or seeking to contact, Mr. Hall. However, there were also dramatic differences, principally between Mr. Hall, on the one hand, and Mr. Fox, on the other, as to what Mr. Fox had said on occasions when it was common ground that those gentlemen had met, or Mr. Fox had had contact with others acting on behalf of Mr. Hall.

The law

[11]Before coming to the events which were alleged to have amounted to harassment of Mr. Hall by Mr. Fox, it is convenient to remind oneself of the law applicable to the claims made.

[12]By Protection from Harassment Act 1997 s.1 it is provided, so far as is presently material, that:- “(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. (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows- …

[13]At Protection from Harassment Act 1997 s.7(3) it is said that:- “A “course of conduct” must involve conduct on at least two occasions.”

[14]While harassment amounts to a criminal offence, a civil remedy is provided in Protection from Harassment Act 1997 s.3(1). In this action Mr. Hall sought injunctions restraining Mr. Fox from harassing him. There were also pleaded claims for damages, but, by order of Underhill J made on 3 April 2012, the trial before me was not concerned with any issue as to damages.

Matters that were common ground

[15]It was common ground that Mr. Fox attended at the offices of Mr. Hall’s business at 21, Arlington Street, London SW1 on 9 February 2012 without an appointment. He asked to see Mr. Hall. The receptionist told Mr. Fox that Mr. Hall was not there, which was correct. Mr. Fox said that he would return the next day, and then left.

[16]On 10 February 2012 Mr. Fox returned to the offices of Mr. Hall at about 10.00 a.m. He had no appointment. With him he had a brown envelope in which were copies of the Wilson Agreement and the Assignment Agreement. He waited in the reception area for something over an hour. Mr. Hall then came down to see Mr. Fox. They left the building. Outside the building Mr. Fox gave Mr. Hall the copies of the Wilson Agreement and the Assignment Agreement, but kept the brown envelope. Mr. Hall suggested that the pair go across the road to a public house, which they did. They had some conversation in the public house. In the course of their discussions Mr. Hall wrote his mobile telephone number on the brown envelope which Mr. Fox had retained. What Mr. Fox said to Mr. Hall in the public house was very much in dispute.

[17]There was no further contact, or attempted contact, between Mr. Fox and Mr. Hall until 20 February 2012. On that day, at 15:52:50 hours Mr. Hall sent Mr. Fox a text message, which read:- “I hav [sic] a meeting tomorrow with tss – I will come back with a time to sit down after that meet.”

[18]The next day Mr. Hall sent Mr. Fox another text message, at 16:28:06 hours. He wrote:- “I have set up a meeting on Friday in leicster [sic] square at 4 pm – in the hotel the Hampshire – terry and me will be there.”

[19]The “Terry” referred to was Mr. Terence Neil. The appointment had been made without consultation with Mr. Fox and was inconvenient to him. He telephoned Mr. Hall in attempts to re-arrange the timing of the meeting at 17:50:17 hours and 18:59:51 hours, but Mr. Hall did not answer the telephone.

[20]On 23 February 2012 Mr. Fox returned to the offices of Mr. Hall, hoping to speak to him. Mr. Hall was in a meeting. He asked Mr. Craig Calder, development director of Obsidian Capital, to go and speak to Mr. Hall, which Mr. Calder did. Mr. Calder and Mr. Fox went outside the offices and spoke briefly, a conversation which was shown on a videotape of which a copy was put in evidence. The pair could be seen laughing at one point, and shook hands before Mr. Fox departed.

[21]Later that day Mr. Douglas Thompson made contact with Mr. Fox and they arranged to meet the following morning in Enfield. Mr. Thompson and Mr. Fox had been friends for a number of years, originally having met through a common interest in wrestling. Mr. Thompson had been a police officer, but by February 2012 he was acting as a consultant to TSS.

[22]On 29 February 2012 Mr. Fox and a friend of his, Mr. Nicholas Papadopoulos, attended at a property known as and situate at 38, Lauriston Road, Wimbledon. The house at that property was in the process of substantial building works and was not inhabited. It seems that the property belongs to Mr. Hall’s wife.

[23]Mr. Hall instructed solicitors, Messrs. Davenport Lyons, to prepare a letter to Mr. Fox. The letter was in these terms:- “Our client: Michael Hall. Issues under the Protection from Harassment Act 1997. Introduction We have been instructed by our above-named client to write to you concerning your recent inappropriate conduct, which has caused our client to be concerned for his personal safety and the safety of his family. At the outset of this letter we must urge you to take independent legal advice about the content of this letter and the enclosed form of undertakings which we ask you to read carefully and sign and return to us using the pre-paid stamped addressed envelope which is provided for your use. The form of undertakings is an important legal document which we have prepared based upon our client’s instructions as to your recent conduct, to which we will refer below. If signed and returned by you, it will have a binding effect upon your future conduct towards our client and his family. Harassment We wish to inform you of the relevant provisions of the Protection from Harassment Act 1997, an Act of Parliament which has the full force of law and governs the conduct of citizens and residents of England. The Act provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows, or ought to know, amounts to harassment of the other. Section 1:

“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. Also section 1: “Harassment is punishable on summary conviction by three months imprisonment and/or of up to level 5 on the standard scale”

. The victim of the harassing conduct can bring civil proceedings for damages resulting in anxiety and financial loss: section 3(2). The Act does not define harassment, but states that reference to harassing a person includes alarming the person or causing them distress: section 7(2). Allegations of harassment We are instructed that you approached our client’s place of work, located at 21 Arlington Street, London SW1, on the afternoon of 9 February 2012 and asked to see our client. We understand our client was not at the time on the premises and you were told that was the case. You then returned to 21 Arlington Street the next morning at approximately 10 a.m. and waited to see our client until approximately 11.30 a.m., when our client arrived at the building. You did not have an appointment with our client, nor had you tried to arrange an appointment by prior communication. We are instructed that you had made it clear to the reception staff at the office that you were unwilling to leave the premises until you had met with Mr. Hall. Upon meeting with Mr. Hall on this occasion, you made unwarranted demands for the payment of an alleged debt of some £67,000 and made menacing threats towards our client at the same time, indicating that “there was only one way this matter would ultimately be sorted out”. We are instructed that you initially referred to an alleged debt of some £87,000 of which £67,000 was still outstanding. After due consideration our client believes you are referring to a corporate dispute involving one Ian Wilson and a door security service business that was at one time traded under the name of Trafalgar Security Services Limited (“TSS”) in early 2000/01. You produced a document entitled “Memorandum of Agreement” purportedly entered into between yourself and the said Ian Wilson under which it is suggested that Mr. Wilson has transferred to you a debt of some £67,500 allegedly owed to Mr. Wilson by Mr. Hall on behalf of TSS Trading Limited (Managed Security Services Limited). The presentation of this memorandum of agreement was the first that our client had heard of any such alleged debt for in excess of six years and, understandably, our client rejected your demands and asked you to leave the premises. For the avoidance of any doubt, we can confirm that there is no indebtedness on the part of our client in favour of Mr. Wilson or any liability under which Mr. Wilson is owed any monies whatsoever arising out of the business venture in 2000/2001 and thereafter as alleged or at all. Matters relating to the door security service business were fully resolved in 2003/04 when, we are instructed, Trafalgar Security Services Limited was liquidated, Mr. Wilson having previously left the business under a cloud and departed to South Africa when, at the time, his conduct had been such as to damage the financial position of the business to a significant extent. This has been corroborated by the new management. By way of further background information, we have been instructed to advise you that in or around 2002/2003 Mr. Wilson and your common acquaintance, Mr. Mason Hayes, spoke to both Soraya Neil and Terry Neil, the management at TSS at the Leigh Street offices, and requested a final sum of approximately £10,000 of the £87,000 in question prior to Mr. Wilson wanting to leave and return to South Africa. The amount was disputed by Mr. Neil as Mr. Watson had breached the previously agreed arrangement on a large number of accounts. It is clear to our client that, given your closeness to Mr. Hayes, you would be aware of this quantum at the time of this meeting. According to the evidence drawn up by the accountants, this disputed figure, indeed, now is purported to be approximately £3,000, given that Mr. Wilson in addition was able to earn a further £10,000 from the liquidator of the previous company. At no time then or since did Mr. Wilson or Mr. Hayes claim that any money was owed from our client or that any dispute had arisen between Mr. Wilson and our client. Furthermore, in 2005 Mr. Wilson contacted our client via letter, asking him to settle various debts he had accumulated, and at no time did Mr. Wilson claim our client owed him anything or, indeed, that there was any dispute between our client and Mr. Wilson. Before leaving the premises on 10 February, we understand that you informed our client that you are a previously convicted criminal, having served a custodial sentence in Belmarsh Prison for serious offences. Prior to this confrontation, our client did also know of your reputation via a Mr. Hayes, a know associate of yours and a close friend of Mr. Wilson. Whatever the rights and wrongs of your claim for monies, the threats of violence towards our client and his family were totally unwarranted and unlawful and constituted harassment under section 1 of the Act. Furthermore, in the highly unlikely event that you were under any misapprehension at all as to the effect of your conduct, we hereby give you notice that your conduct was such as to satisfy the provisions of section 1 of the Act. It is quite clear that you are making it your business to intimidate our client as you gained entry to our client’s offices and place of work on 9 and 10 February without any prior appointment and with the intention of demanding money with menaces without justification. We understand that, having made your threatening comments on 10 February, you returned to our client’s place of work on the afternoon of Thursday, 23 February 2012 at approximately 1.30 p.m. On this occasion our client was attending an important board meeting of his business and refused to interrupt that meeting, although he was told of your attendance. As a consequence we understand that on this occasion you got a bit further than the office reception, at which point we understand that you spoke with a Mr. Craig Calder, who informed you that Mr. Hall would not be interrupted in his business meeting to meet with you and he asked you to come and speak outside. In response to this, we understand that you walked out of the premises at 21 Arlington Street and continued to engage Mr. Calder in conversation and said that Mr. Calder should let our client know that “there is only one outcome”. This terminology was clear [that is what it actually said: probably “clearly” was intended] designed to suggest that if Mr. Hall did not attend to your unwarranted claim for payment of monies, violence would follow. When Mr. Calder advised you that he wasn’t materially involved in the matters between you and Mr. Hall and did not want to become involved and was merely passing on details to the effect that Mr. Hall was not available to see you on this day and was unable to help you further, you responded to the effect that Mr. Calder should tell Mr. Hall, “there’s only one outcome”. We would like to point out that we have CCTV evidence of your attending 21 Arlington Street on both occasions and several witness statements to corroborate these events. Following this second event, our client spoke to an operations director at TSS, the security company, who is a former police officer with some 23 years distinguished experience, a Mr. Douglas Thompson. Mr. Thompson contacted you and was able to meet with you on Friday 24 February as you had previously given a telephone number to our client to contact you on. Mr. Thompson advised you in no uncertain terms that your conduct was unwelcome and unlawful and should immediately cease. Furthermore, you were told that if there was any further intimidation of our client, it would result in the police being involved. Mr. Thompson confirmed to you that our client’s position with regard to your unwarranted claims was that you were owed nothing and that if you continued with your intimidating conduct, it was likely that you would be in breach of any licence under which you are currently at liberty, following your custodial sentence referred to above. Mr. Thompson also reiterated, we understand, that you had been given incorrect information and that the management of TSS disputed, like our client, the claim being made. You once again made it clear that you had been an inmate of Belmarsh Prison, a statement clearly designed to demonstrate your criminal credentials and further intimidate. Notwithstanding this firm oral warning, we are instructed that you then, on 29 February at 3.00 p.m., attended our client’s private residence at 38 Lauriston Road, London SW19, which is currently undergoing building works. On this occasion we are instructed that you intimidated the builders who were working on site and took it upon yourself to walk around the premises whilst uttering further threats of violence, to the point that one of the contractors decided to leave in fear of their personal safety. We understand that as you were walking round the premises, you made a point of commenting to the effect that you wished to know the layout of the property for future reference. Such a comment is clearly designed to intimidate and to cause our client to be concerned for his personal safety and the safety of his family. It is beyond any reasonable doubt that your conduct falls into the category of conduct that is covered by section 1 of the Act. Cease and desist demand The purpose of this letter is to formally demand that you immediately cease and desist in your conduct of harassment towards our client and his family and to that end we have prepared the enclosed form of undertakings for you to carefully read, take independent legal advice upon and sign and return to us within five days from the date of receipt of this letter to confirm that you will not repeat the conduct that is the subject of this letter and you will conduct yourself in a civilised manner in future. If you have a monetary claim to make against our client, then you should fully particularise the claim in writing and in detail and present that claim to us formally and we will address the claim in correspondence. If the matter cannot be resolved to your satisfaction in such correspondence, you have the right to take your claim before a civil court and have the claim adjudicated by a judge. You have no right to continue your unlawful harassing conduct which must stop immediately. Should you repeat any of the conduct that we have detailed above and/or should you fail to sign and return the form of undertakings within the time specified, we have our client’s instructions to proceed immediately with an application to the court for an injunction order to be made under section 3 of the Act without further notice. Should court action be necessary, we must inform you that in addition to the claim for an injunction to restrain you from your repeated unlawful conduct, our client will claim damages from you and the costs of the proceedings themselves. We trust it will not be necessary to proceed with court action and that you will seek independent legal advice upon the content of this letter and the form of undertakings and that you will sign and return the undertakings to us and comply with the undertakings and conduct yourself in a civilised manner in future.” Introduction Harassment Allegations of harassment

Cease and desist demand

[24]The terms of the undertakings demanded were:- “I, Kevin Fox, of [insert full address], hereby solemnly undertake that I will not repeat any of the conduct that is the subject of a complaint in a letter addressed to me from Davenport Lyons, dated [ ] day of March 2012, and that from the date of my signing this document, I will, whether by myself or by instructing or encouraging or permitting any other person:-(1) refrain from any conduct which could possibly be interpreted as harassing Michael Hall or any members of his family;

(2) not make any direct contact with Michael Hall or any members of family in any form of communication, whether by oral communication, by telephone or text message, e-mail or any other means other than by letter addressed to Mr. Hall’s solicitors, Davenport Lyons, at 30, Old Burlington Street, London W1;

(3) not approach within 200 metres of Michael Hall’s home and place of residence at 38 Lauriston Road, Wimbledon, London SW18 or at Michael Hall’s place of work at 21 Arlington Street SW1 or other address if he was to move at any time of the day or night;

(4) not approach to within 200 metres of Michael Hall or any member of Mr. Hall’s family at any time of the day or night.”

[25]On 13 March 2012 Mr. Thompson met Mr. Fox by arrangement and gave him the letter and undertaking. Mr. Fox did not offer the undertaking sought or respond to the letter.

[26]An arrangement was made for Mr. Thompson and Mr. Fox to meet again on 20 March 2012. At the time the arrangement was made each of them expected that Mr. Hall and his solicitor would also attend the meeting.

[27]In fact neither Mr. Hall nor his solicitor made any attempt to attend the meeting, which had been fixed for 4.00 p.m. at the Hampshire Hotel in Leicester Square, London. When they did not appear Mr. Fox sent a text message to Mr. Hall’s mobile telephone in which he said:- “Michael, you’ve arranged to meet me today at 16:00 hrs. Maybe to arrange settlement? You also was [sic] arranging for your lawyer to attend.”

[28]Mr. Hall replied at 16:17:36 hours:- “Douggie [Mr. Thompson] is trying to find u in leicetre [sic] sq to hand u some paperwork.”

[29]In his turn Mr. Fox responded at 16:28:16 hours:- “Michael, you arranged the personal meeting between us today.”

[30]Mr. Fox and Mr. Thompson did not meet on 20 March 2012.

[31]On 23 March 2012 application was made to Keith J without notice for injunctions against Mr. Fox. The application was supported by a witness statement (“Mr. Hall’s First Witness Statement”) dated 22 March 2012. Keith J made an order, so far as is presently material, in these terms:- “the defendant be forbidden, whether by himself or by instructing others or encouraging or permitting any other person:(i) from pursuing any conduct that amounts to harassment of the claimant or any member of his family;

(ii) from going within 100 metres of 21 Arlington Street, London SW1;

(iii) from going within 100 metres of Kent House, 14 – 17 Market Place, London W1;

(iv) from going within 100 metres of 28 Lauriston Road, Wimbledon SW19;

(v) from going within 100 metres of Chelsea Harbour, London SW10;

(vi) from making any attempt to contact the claimant or any member of his family save by means of a letter or email communication to his solicitors, Davenport Lyons at 30 Old Burlington Street, London W1 using [an e-mail address which was set out in the order, but which I need not quote];

(vii) from making any attempt to approach within 100 metres of the claimant or any member of his family. The order shall remain in force until Tuesday, 3 April 2012 at 10.00 a.m. unless before then it is revoked by further order of the court.”

[32]Those orders were continued by order of Underhill J made on 3 April 2012 until trial or further order.

[33]Mr. Fox has not had any contact with Mr. Hall since the exchange of text messages on 20 March 2012.

Matters in dispute

[34]In Mr. Hall’s First Witness Statement he gave a colourful, but seriously inaccurate, account of his dealings, and those of others acting on his behalf, with Mr. Fox between 10 February 2012 and 29 February 2012.

[35]About the events of 10 February 2012 he said:- “6. I am informed by Miss Clair Wells that the defendant then returned to the offices the next morning, Friday 10th, at approximately 10 a.m. and waited in the offices until approximately 11.30 a.m., when I arrived at the building. Again there was no appointment arranged with me, nor did the defendant attempt to arrange an appointment by prior communication. The defendant made it clear to the reception staff at the offices that he was unwilling to leave until he had met with me. 7. I decided that I would have to speak with the defendant and find out what he wanted to speak to me about. I went to speak to him in reception and he requested that we speak outside, and he introduced himself as Kevin Fox, a friend of Mr. Hayes. His manner was threatening and menacing and he told me he had been assigned an outstanding debt which Mr. Wilson had with TSS Security some 10 years or so ago. He presented some paperwork as described below. 8. The defendant explained that Mr. Wilson had agreed with TSS that he was to be paid a settlement of £87,000 for the goodwill of the business he had generated in starting TSS which had been put into liquidation, but of this £67,000 was still outstanding. I could not recall the issue, nor whether his claim for £67,000 of the £87,000 was accurate, but I mentioned to him that I would look into it and revert to him on the facts. 9. He said he had a telephone number which he would contact from and asked me for my telephone number, which I gave him, and he later called me from a telephone number, thereby meaning I had the ability to contact him in the future. This contact number for the defendant is [and a number was then set out, but I need not read it]. I told the defendant that I knew of his reputation and that I did not want any kind of issue with him and believed that the matter he was raising with me was a misunderstanding. On the subject of the defendant’s reputation it suffices to say that Kevin Fox is a name that I had heard of in the past and I was aware of the fact that he had a reputation as a hard man and a physically intimidating person, an underworld enforcer, if you will. Whilst I did not know precisely what the defendant had been spending his time doing in the years since I had last been in material contact with Mr. Wilson, it soon became apparent to me as I searched online for information. The defendant was convicted of armed robbery in September 2005 and sentenced to a long period of imprisonment at Woolwich Crown Court. At the time of his first meeting I did not know the detail of the defendant’s criminal past, although he made passing reference to it as I will detail below. Nonetheless, I said I would meet him again with the facts and seek to resolve the misunderstanding. At no point did I tell the defendant my wider business, nor did I mention where I lived. I now believe he already knew I lived in Wimbledon, which obviously causes me concern. 10. The defendant said that there was a debt owed and he was determined to get this debt paid. I enquired why this had not been brought to my attention before over the past ten years, but he did not answer this in a way that shed light on this point. I have subsequently discovered in discussions with two persons who know Mr. Wilson that he has recently got himself into serious financial difficulty and which I suspect has driven this action, not that there was indeed any actual debt owed by me to him. 11. At no point did the defendant explain to me that he was out of prison on licence, but he did make reference to the fact that he had in the past been a prisoner at HMP Belmarsh. The defendant also made a number of statements about how effective he was in collecting debts, and made it clear he would not rest until the £67,000 was settled. 12. During the course of this meeting the defendant made a number of unwarranted and menacing threats towards me, indicating that there were definitely monies owed without providing any kind of evidence of monies having been outstanding. He used the disconcerting phrase, “there was only one way this matter would ultimately be sorted out” if I did not settle the purported £67,000 debt. I understood this to mean that if the £67,000 was not paid by me and in short order, then violence would follow. The defendant’s manner was forceful and menacing. He positioned himself very close to me and took my arm in his hand with a firm grip as he repeated that he was good at his job, that money was owed and that he was not going to stop until the money was paid. He fixed me in the eye and stared at me in a deliberately forceful way as he said, “I’m good at what I do”. He said that he would give me time to reflect on how this matter was going to be settled and he would contact me again in due course. I told the defendant that his claim had come out of nowhere and I asked him why he would not go through the normal channels and write to me or instruct a lawyer. His reaction was to say, “No lawyer will take this on, but I am going to collect the debt anyway”. I decided to gather the facts as I was sure that when presented with them, the defendant would realise that the claim was unfounded and desist from this threatening conduct. 13. The defendant produced a document entitled “Memorandum of Agreement” which was purportedly entered into between the defendant and Mr. Wilson, under which it is suggested that Mr. Wilson had transferred to the defendant a debt of some £67,000 allegedly owed to Mr. Wilson by me on behalf of TSS Trading Limited (Managed Security Services Limited). The date of this document was 23 January 2012. 14. I should confirm that the production of this memorandum of agreement was the first that I had heard of any such alleged debt for in excess of 10 years, and I therefore said to the defendant that I didn’t know anything about the debt, but that I would look into the matter for the defendant. Although I was shaken by the meeting I nonetheless and understandably rejected the defendant’s demands and asked him to leave the area and not return to the offices. The meeting took about 10 minutes and his parting words were, “I will be in touch with you”. I have not, in this witness statement, set out the full history of the dealings that I have had with Mr. Wilson, as such is not directly relevant to the defendant’s conduct. However, I have recently found a letter from 2005 from Mr. Wilson in which he is effectively asking me to assist him with his financial difficulties and there is no reference to the alleged debts of £67,000 or £87,000 within that correspondence, which is hardly surprising as there is no such debt. 15. Before leaving the offices on 10 February the defendant told me that he had previous convictions for a serious crime, which I now know to be conspiracy to commit an armed robbery, and that he had served a long custodial sentence in Belmarsh Prison for this offence. I believe that this was said deliberately by the defendant so as to intimidate me and make me realise that he is a violent man. 16. It was clear from the defendant’s demeanour and language that he was making or suggesting by implication threats of violence towards me and my family. The reference to Belmarsh Prison, combined with the defendant’s declared determination to get a debt settled in spite of my confirmation that nothing was owed, led me to believe that the intention was to follow up with violence if the disputed £67,000 is not paid. That is still my belief. 17. After the initial meeting I was so concerned that I arranged for the preparation of a set of correct witness statements from everyone at my place of work who had been in contact with eth defendant on this occasion, and I arranged for a personal security guard to ensure my safety. I also sought to gather all evidence to support my statements about the allegation of historic indebtedness, even though this matter was over 10 years old.”

[36]Mr. Hall did not mention in those paragraphs that in fact Mr. Fox had given him a copy of the Wilson Agreement signed by Mr. Hall. By making specific reference to the Assignment Agreement Mr. Hall plainly created the impression in the mind of the reader of Mr. Hall’s First Witness Statement that that was the only document which he had been given and that it was difficult for him to understand any possible basis for a claim against him. That was seriously misleading. Whatever he may have thought the merits of a claim against him based on the Wilson Agreement were, he certainly knew that it was that agreement which was said to be the foundation for his liability.

[37]Mr. Hall did not mention that he and Mr. Fox crossed the road to the public house. Rather, in the account which he gave Mr. Hall seemed to describe an encounter with a character out of a Damon Runyon short story, a gangster type with a ready inclination to resort to violence in order to achieve his ends.

[38]There was in any event, as it seemed to me, an inconsistency between, on the one hand, the presentation of Mr. Fox as a man determined to extract, by threat of violence, payment of a sum from Mr. Hall which was not due, and, on the other, the suggestion at the end of paragraph 12 of Mr. Hall’s First Witness Statement that, in effect, Mr. Hall considered that Mr. Fox would decide to act reasonably, and not pursue his claim, if presented with evidence that the alleged debt was not due. If the truth was that Mr. Hall thought that there was a chance of persuading Mr. Fox not to pursue his claim if presented with evidence that that claim was unsound, it seems unlikely that Mr. Fox threatened Mr. Hall in the ways suggested.

[39]Mr. Fox himself made two witness statements for the purposes of this action. The first was dated 30 March 2012 and was supported by some documentation, in particular copies of the text messages to which I have referred. The service of the first witness statement of Mr. Fox prompted Mr. Hall to make a second statement (“Mr. Hall’s Second Witness Statement”). In that, at paragraphs 7 and 8 he conceded the important points that Mr. Fox had given him a copy of the Wilson Agreement on 10 February 2012 and that the two of them had gone across the road to the public house. Failure to include these details in Mr. Hall’s First Witness Statement seems to me to have amounted to serious material non-disclosure in the evidence put before Keith J.

[40]By what he said at paragraph 17 of Mr. Hall’s First Witness Statement about arranging for the preparation of a set of correct witness statements from everyone at his place of work who had been in contact with Mr. Fox on 10 February 2012 Mr. Hall created the impression in the mind of the reader of Mr. Hall’s First Witness Statement that he had obtained a number of witness statements from independent parties, albeit employees of his company, which supported his account of what had happened. Mr. Fox had asked Mr. Hall’s solicitors for copies of those statements and had been fobbed off with the assertion that he had been provided with copies of the witness statements of those whose evidence was to be relied upon at trial. Mr. Fox returned to the issue during cross-examination of Mr. Hall. I suggested that, as the statements had been mentioned in Mr. Hall’s First Witness Statement, they should be disclosed. It then transpired that there were none. The allegation that Mr. Hall had arranged for the preparation of a set of correct witness statements was a straightforward untruth. When Mr. Fox sought to press Mr. Hall as to how he had come to say what he had said in paragraph 17 Mr. Hall suggested that it was a minor error, the product of the speed with which it had been necessary to produce Mr. Hall’s First Witness Statement. I do not accept that. I am afraid that Mr. Hall’s untrue evidence concerning obtaining a set of witness statements, and his lack of candour in Mr. Hall’s First Witness Statement, caused me grave concern as to whether I could rely upon anything Mr. Hall said in evidence which was disputed. Unhappily I reached the conclusion that I could not, both because of these matters and other matters to which I shall come.

[41]It is convenient to move to the evidence as to what happened on 23 February 2012. Mr. Hall himself did not meet Mr. Fox. He sent Mr. Calder instead. At paragraph 13 of Mr. Hall’s Second Witness Statement Mr. Hall commented upon Mr. Calder’s return from his encounter with Mr. Fox. He said:- “When Mr. Calder re appeared before me he appeared to me to be nervous, distressed and clearly unnerved by the incident.”

[42]It is difficult to see that Mr. Hall could possibly be correct about that, for Mr. Calder, who was called to give evidence at the trial, said, at paragraph 6 of his witness statement:- “his behaviour was perfectly civilised throughout our encounter.”

[43]And, indeed, that is what one could see on the videotape shown in court.

[44]The issue of the amount of support from independent witnesses Mr. Hall actually had surfaced also in paragraph 21 of Mr. Hall’s Second Witness Statement in relation to the visit to Wimbledon on 29 February 2012. Mr. Hall began the paragraph:- “When the Defendant appeared at my house in Wimbledon I am told by a number of the builders working on the site, some of whom have bravely come forward and signed confirmatory witness statements, despite the Defendant’s reputation, that the Defendant said to the contractors working at the front of the building that he knew me and that I had told him “to walk around the property when in the area” That is how the Defendant gained access to my home. By deceit and by telling an untruth.”

[45]That form of words gave rise to two questions. The first was how many builders had bravely come forward and signed confirmatory witness statements. The second was whether they were, indeed, confirmatory of the evidence of Mr. Hall. The answer to the question, how many?, was one. As to whether the witness statement of Mr. Mark Anning was confirmatory or not, that depended on whether one expected it to confirm what was in Mr. Hall’s First Witness Statement or what was in Mr. Hall’s Second Witness Statement. While, in Mr. Hall’s Second Witness Statement he spoke of Mr. Fox tricking his way onto site, he put matters differently in Mr. Hall’s First Witness Statement, that relied upon before Keith J, at paragraph 24. There the account was:- “I am told by Mr. Anning and another contractor on site at the time that the Defendant intimidated the builders who were working on site by forcing his way onto the property …”

[46]When asked about the issue of the numbers of witness statements from builders, Mr. Hall said that he had expected that a second builder, Mr. Richard Puddy, would sign a statement. A draft statement from Mr. Puddy was produced during the trial. However, Mr. Hall did not seek to correct, when he came to verify his witness statements, what he had said at the start of paragraph 21 of Mr. Hall’s Second Witness Statement.

[47]Mr. Anning was called to give evidence on behalf of Mr. Hall. In his witness statement, which he confirmed on this point in cross-examination, Mr. Anning said that he had not seen Mr. Fox enter the site. What had actually happened was that, having first encountered other builders, Mr. Fox, who was accompanied by his friend, Mr. Papadopoulos, set off to find Mr. Anning and met him as he was coming to see them, having heard that they were on the site. Mr. Anning told me in cross-examination that he thought it strange for Mr. Fox and Mr. Papadopoulos to have entered the site without speaking to him first, as he was the site agent. However, it did not appear that they did anything else which was unusual. In particular they did not threaten the men on the site or Mr. Hall.

[48]I accept the evidence of Mr. Thompson, who was called on behalf of Mr. Hall, that he informed Mr. Fox at their meeting on 24 February 2012 that Mr. Hall found his attentions very threatening. However, it appeared that Mr. Hall, at least at this stage, was sending Mr. Fox mixed messages. By this time Mr. Fox had met Mr. Hall only once, on 10 February 2012, and had been told, in the text message of 21 February 2012 that Mr. Hall and Mr. Neil wished to meet him on the very day that Mr. Fox in fact met Mr. Thompson. Even following the meeting on 13 March 2012 when Mr. Thompson delivered the letter from Davenport Lyons with the draft undertakings attached, Mr. Hall was still contemplating, and leading Mr. Fox to think that he was contemplating, a meeting with Mr. Hall and his solicitor the only purpose of which could have been to discuss Mr. Fox’s claim.

[49]Mr. Calder also impressed me as a witness. I accept that Mr. Fox did say to him something to the effect that “There’s only one outcome”, but what that meant, or was intended to mean, seemed to me to be obscure.

[50]Mr. Fox gave evidence on his own behalf. He called as witnesses Mr. Papadopoulos, Mr. Haynes and Mr. Valmeekee Singh. The evidence of Mr. Haynes and that of Mr. Singh was really focused on what seemed to be informal countermeasures which Mr. Hall had sought to take against Mr. Fox. The taking of such measures would not have been surprising, but it is not necessary for me to reach any conclusions concerning them. Mr. Papadopoulos’s evidence was mostly concerned with telephone contact, because he had lent Mr. Fox the telephone which he used in contacting, or seeking to make contact with, Mr. Hall, and Mr. Papadopoulos himself was troubled, whilst recovering from a hip replacement operation, by text messages from Davenport Lyons, one sent at 6.30 a.m. However, Mr. Papadopoulos did speak of the visit to Wimbledon on 29 February 2012, and he told me that it was actually his idea, whilst he and Mr. Fox were in Wimbledon on other business, to see whether Mr. Hall was visiting what Mr. Papadopoulos told me both he and Mr. Fox knew was an uninhabited building site.

Conclusions

[51]Mr. Fox is a middle-aged man of medium height. He looks as if he keeps himself fit. He seems to be balding naturally, but he has shaved from his head such hair as might otherwise grow there. He is obviously intelligent. He had prepared himself well for the trial. He conducted his cross-examination of the witnesses called on behalf of Mr. Hall with skill and sophistication. He was especially effective in comparing and contrasting Mr. Hall’s First Witness Statement and Mr. Hall’s Second Statement. Mr. Hall would have me find Mr. Fox to be some sort of stage villain, but I am satisfied that Mr. Fox has many resources of character which he can deploy to try to achieve his objectives without resorting to crude violence. Where his evidence was susceptible of independent corroboration, for example by the videotape which I have mentioned, or from the text messages from which I have quoted, what he said was demonstrated to be correct. The same could not be said of the evidence of Mr. Hall.

[52]Mr. Hall struck me as a somewhat timorous person. It may well be that the physical appearance of Mr. Fox frightened Mr. Hall. While the various references to the reputation of Mr. Fox were never made very specific as to what that reputation was alleged to be, it may be that, whatever it was, also frightened Mr. Hall. However, I am not satisfied that whatever fears Mr. Hall may have entertained were justified by anything that Mr. Fox actually said or did. I simply do not accept the evidence of Mr. Hall on any contested matter. What was left was not much.

[53]I am not satisfied that Mr. Fox’s behaviour on 9 February, 10 February or 23 February 2012 amounted to harassment of Mr. Hall, or that Mr. Fox ought reasonably to have known that it did. The position changed somewhat after the meeting between Mr. Fox and Mr. Thompson on 24 February 2012, but, as I have said, the messages from Mr. Hall to Mr. Fox were mixed. With the benefit of hindsight Mr. Fox probably recognises that the visit to Mr. Hall’s house on 29 February 2012 was unwise and likely to be misconstrued, but it was only one incident, and thus not a course of conduct.

[54]Mr. Fox told me in cross-examination that he now understood that Mr. Hall did not wish Mr. Fox to have any direct contact with him, but to deal with him only through Davenport Lyons. He said that he accepted that and knew that, if he sought to have any further direct contact with Mr. Hall that would amount to harassment. I accept his evidence on these points.

[55]For the reasons which I have given this action fails and is dismissed. I also discharge, so far as necessary, the injunctions granted by Keith J and Underhill J. As I have explained, in my judgment the injunctions obtained from Keith J were obtained by breach on the part of Mr. Hall of his duty to give full and frank disclosure of all matters relevant to the exercise of the discretion of Keith J.

Cited in 1 later judgment

Fox v Hall 2014