Fox v Hall [2014] EWHC 2747 (QB)

[2014] EWHC 2747 (QB)

Case No HQ12X04240

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

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

Date 13 August 2014

Before

HIS HONOUR JUDGE STEPHEN DAVIES

SITTING AS A JUDGE OF THE HIGH COURT

Between

MR. KEVIN FOXClaimant

MR. MICHAEL HALLDefendant

The Claimant appeared in person for in person

Edward Cumming (instructed by Enyo Law LLP, London WC2A) for Defendant

Hearing Hearing dates: 21 – 25 July 2014

JUDGMENT

His Honour Judge Stephen Davies:

Introduction

[1]This case demonstrates the pitfalls of:(a) engaging in debt recovery, other than through conventional means;

(b) seeking without notice injunctions, without making full and proper disclosure of all relevant material;

(c) being too ready to bring civil claims for harassment, when the conduct complained of does not, on proper analysis, fall within the definition of harassment; and

(d) pursuing complicated civil claims without the benefit of full and proper legal analysis or advice.

[2]In this case the claimant, Mr Kevin Fox, has in my judgment been guilty of (a), (c) and (d), whereas the defendant, Mr Michael Hall, has been guilty of (b) and (c). The end result of all of this is as follows:(a) The claimant fails to establish the claims which he makes in the present action, both for harassment and for the claims the subject of his earlier attempts at debt recovery, and has wasted a great deal of time and effort in the pursuit of them;

(b) The defendant succeeds in establishing in this action that he has no liability to the claimant, but has already lost a previous action against the claimant, in which he complained that the claimant’s methods of debt recovery amounted to harassment, and has expended a great deal of time and cost, both financial and personal, as a result of the pursuit and ultimate failure of that claim.

[3]By the present action the claimant claims that the defendant is liable to him by way of assignment in respect of claims arising under an agreement made as long ago as March 2002 (“the Wilson Agreement”). The manner in which the defendant said that the claimant had gone about seeking to enforce those claims was the subject of an earlier action brought by the defendant against the claimant under s.3 Protection from Harassment Act 1997 (“the 1997 Act”) in which, after a 3 day trial, HHJ Seymour QC, sitting as a High Court Judge, found against the defendant in a judgment given on 19 July 2012. In turn, the manner in which the defendant sought to defend himself against what he regarded as harassment by the claimant has now become the subject of the present action, in which the claimant seeks damages under the 1997 Act against the defendant for harassment. The defendant, as well as defending the claim, has counterclaimed for a declaration that he has no liability to the claimant in respect of the claims made under the Wilson Agreement. Finally, by amendment to the Particulars of Claim made in proper form on day 2 of the trial the claimant has responded to the counterclaim by including those claims in this action.

[4]In effect, therefore, there are two separate claims in this action, the first being the claimant’s claims under the Wilson Agreement and the second being his claim for harassment.

[5]I shall begin by providing a summary of the history of the matters giving rise to this action, proceed to set out my view of the respective witnesses, and finally consider and resolve the issues which arise.

HISTORY OF EVENTS RELATING TO THE CLAIMS UNDER THE WILSON AGREEMENT

[6]The story begins in around 2000 when the defendant and a Mr Ian Wilson, who hails from and now lives again in South Africa, set up in business together providing security services, doormen and the like, to various London venues, forming a company known as Trafalgar Security Services Ltd (known as TSS for short) in which each held an equal shareholding. The defendant provided the finance, his father Mr Anthony Hall became finance director, and Mr Wilson dealt with the operational aspects.

[7]In around 2001 it was agreed between the defendant, Mr Wilson and another man, Mr Mal Barter, that Trafalgar would buy out Mr Barter’s similar business, known as First Security Solutions (FSS for short), with Mr Barter remaining as a consultant to the business.

[8]In around early 2002 the defendant’s case is that it became apparent to him and his father that, despite the business being extremely successful in terms of turnover, due to cash flow problems its financial position was dire, and that without better operational control and further investment it could not survive. Discussions were opened involving the defendant, Mr Barter and a husband and wife team known as Terry and Soraya Neil, who were involved in yet another similar business at the time. The plan was to put Trafalgar into liquidation and then set up a new business under a form of pre-pack procedure.

[9]Eventually two options emerged, both of which however required Mr Wilson to leave the business. This was because it was clear that both Mr and Mrs Neil, and a further interested investor, a Mr Anish Aggarwal, were only prepared to become involved in the business if Mr Wilson was no longer involved. There was nothing personal about this; it simply appears that none of them had any confidence in Mr Wilson as a businessman. The first option was for Mr Wilson to, in effect, disengage by returning to being a sole trader, taking with him the contacts he had originally introduced. The second was that his interest in the business should be bought out. The second suited Mr Wilson since he was already thinking of returning to South Africa in the medium term for personal reasons, and was the solution which was eventually agreed upon, and which resulted in the Wilson Agreement.

The Wilson Agreement

[10]The Wilson Agreement is a 1 page agreement, signed by Mr Wilson on 18 March 2002, and by the defendant on a date which reads 18 February 2003 but which all agree and I find is a mistake and should be 18 March 2002. It was witnessed by Mr Mason Haynes, a longstanding and very good friend of Mr Wilson’s, and Mr Barter. It is headed “Agreement Mr Wilson and TSS Trading Ltd (Manage Security Services Ltd) (“TSS”)”, and the defendant has signed it above the words “Michael D W Hall for and on behalf of Manage Security Services Ltd”. It contains the following relevant obligations:(1) Mr Wilson would receive a total of £87,500 in monthly equal instalments over the first 12 months of TSS’ trading.

(2) Mr Wilson would devote a specified proportion of his time over this period to TSS’ affairs, receiving additional remuneration for this time spent, as well as further remuneration for any time spent doing door work.

(3) After 3 months’ trading Mr Wilson would be entitled to subscribe for and to be allocated shares in TSS, amounting to 2.5% of its then issued share capital, at par value fully paid.

(4) Mr Wilson would receive a 15% profit share on gross profit earned from business originated by Mr Wilson and recognised as such in writing at the time of signing this contract. (For reasons which were not explored in evidence, it is common ground that no such business was ever recorded in writing, at that time or subsequently.)

[11]There is a dispute as to whether or not, before the meeting at which the Wilson Agreement was signed, there was an earlier meeting which involved the claimant and at which the defendant gave assurances that he would personally make sure that the defendant was properly looked after in relation to whatever arrangement was reached. There is no dispute however that the Wilson Agreement was signed at a meeting which took place at a hotel in Bloomsbury, at which Mr Wilson, Mr Haynes, Mr Barter and the defendant were present. Moreover, Mr Wilson accepts that before he signed the Wilson Agreement he took advice, albeit seemingly on an informal basis, from a lawyer who advised him not to sign it, but that he ignored that advice and proceeded to sign the Wilson Agreement.

Manage Security Services Limited

[12]So far as the company Manage Security Services Ltd (“Manage”) is concerned, it was incorporated on 21 November 2001, when the defendant became the sole director and shareholder, holding 1 issued share. On 8 May 2002 3 further shareholdings were allotted, pursuant to a shareholders agreement which is undated but which, from contemporaneous evidence, can be seen to have been executed on the same date. In short three companies were involved, each of which was allocated shares pursuant to the direction of the defendant, Mr and Mrs Neil and Mr Barter respectively. Thus a company known as Finecourt Investments Ltd was allocated 332 shares to bring the shareholding allocated at the defendant’s direction to 333, and companies known as Cornhill Nominees Ltd and Compass Securities Ltd were allocated 333 shares at the direction of Mr and Mrs Neil and Mr Barter respectively.

[13]Although there has been some suggestion that these companies are mere nominees for the individuals concerned, there is no hard evidence to this effect. Indeed, the position so far as Finecourt is concerned is as follows:(a) In March 2002 instructions were given to accountants to constitute Finecourt and deliver 25,000 shares each to the defendant and to the father of Mr Aggarwal. This was done, and reflected an agreement between the defendant and Mr Aggarwal under which each was to obtain a 50% stake in the one third share of Manage allocated to the defendant, to reflect a capital investment to be made through Mr Aggarwal.

(b) In April 2002 the accountants were instructed to and did transfer the defendant’s shares to his aunt, Jennifer Nielson, who held them until 2006 when they were effectively transferred to a BVI registered company known as Daimon Inc, which was owned and controlled by a trust she had formed known as the Jennifer Nielson Family Trust.

(c) Subsequently, in November 2007, pursuant to a further agreement between the defendant and Mr Aggarwal whereby it was agreed that £30,000 would be loaned to the latter, an agreement was entered into under which Daimon Inc loaned that sum to the latter on terms as to interest and as to Mr Aggarwal’s father’s shares in Finecourt effectively being transferred to Daimon, to hold as security for that loan.

(d) There is now a dispute between the defendant and Mr Aggarwal as to whether or not the shares ought to be transferred back to Mr Aggarwal’s father, and as to what should have happened to the dividends payable on those shares in the meantime, but that dispute has no relevance to this case.

Performance of the Wilson Agreement

[14]Returning to the chronology, it is common ground that Mr Wilson did receive a number of payments under clause 1 of the Wilson Agreement, that he undertook services as envisaged by clauses 2 and 3, and was paid for those services as well. However it is also common ground that before the agreed period had expired, in around June 2002, Mr Wilson decided, for personal reasons, to return to live in South Africa. He claims that this was amicable, and that both the defendant and Mr Neil said that they would honour the Wilson Agreement. The position of the defendant and Mr and Mrs Neil is that the departure was not amicable, because for a number of reasons they were extremely concerned about Mr Wilson’s performance of his responsibilities, and that he effectively left them in the lurch. Mr Wilson accepted that he had been barred from working at one club due to being caught taking money on the door, but denied that this had resulted in the contract being lost, or otherwise that he had been guilty of misconduct.

[15]So far as the payments in relation to the £87,500 are concerned, it had always been the claimant’s case and Mr Wilson’s evidence before trial that he had been paid “around £20,000”. By contrast it was the defendant’s case, supported by evidence from Mrs Neil, that he had been paid £29,047 in the 6 months to 30 September 2012 and a further £32,538.19 in the following year. They also contended that further set offs of £11,250 and £10,228.97 had been levied by agreement in those financial periods and, finally, that any remaining indebtedness had been settled by payment of a further £1,200 in full and final settlement.

[16]Although Mrs Neil said that due to the passage of time much of the primary evidence in relation to such payments was no longer available, Manage had been able to produce the following evidence:(a) The minutes of a board meeting held on 11 July 2002, referring to problems since Mr Wilson’s departure to South Africa and to it being left to Mr Neil to speak to Mr Wilson and “strike a new arrangement” with him..

(b) The minutes of a board meeting held on 15 August 2002. These refer to Terry Neil having met with Mr Wilson and “formed an understanding that any claim by Mr Wilson on the company would be offset by the value of lost business or non payments by clients under his original control”.

(c) The minutes of a board meeting held on 8 August 2003. This refers, at item 9, to it being agreed that “final settlement with Mr Wilson would approximate the figures he had proposed to Mike in an email – about an extra £1,200”. It referred to the company’s view that Mr Wilson’s conduct was a material breach so that he had “forfeited his original expectation of a small share allocation”. It noted however that “any concession which [the defendant] may care to make from shareholding in his ambit would not be opposed so long as there was no obligation to register shares in Wilson’s name in the company register”.

[17]However at trial Mr Wilson produced bank statements relating to a company known as Secure Operations Limited, with a Barclays account at Putney, which show 6 payments described as “remittances” (subsequently shown by the claimant from enquiry made on Barclays website to describe cheques paid in other than at the branch holding the account), each of £8,567.70, thus totalling £51,406.20, made over the period May to December 2002. His evidence was that these were the payments made under the Wilson Agreement. The claimant’s case in closing, albeit not supported by any evidence, whether documentary or oral, was that these payments had been made by the defendant personally.

[18]As to the shares in Manage, Mr Wilson does not claim that he ever made a request to be allocated his 2.5% shareholding after 3 months. He does claim however that he spoke to the defendant on a number of occasions about the shares, and that the defendant stated that he was holding them for him. He relies on an undated letter which he wrote to the defendant, sometime in early 2005, in which he explained his straitened financial circumstances and asked the defendant for what he said was due to him, namely “the 1% shareholding with you” which, he claimed, the defendant had previously said could be worth anything from £40,000 to £150,000. He suggested various options, including either a one off payment of £30,000 or £35,000 in monthly instalments.

[19]There is no suggestion that the defendant ever responded to this letter. Mr Wilson said that the defendant telephoned him, but that the defendant said that he was unable to pay him out or to help him. Mr Wilson accepted that he never made contact with the defendant again afterwards. In evidence Mr Wilson said that prior to this, in around 2002 or 2003, he had consulted lawyers in London about bringing a claim, but he was unable to afford the fees they quoted, and without legal assistance he felt unable to bring a claim.

[20]It is unnecessary for present purposes to record the circumstances which led to Mr Wilson entering into an assignment agreement with the claimant. They are relevant to my assessment of the credibility of certain of the witnesses, but not to the story. It suffices for present purposes to say that it is clear that Mr Wilson, who remained in straitened financial circumstances, and who firmly believed that the defendant had done him down over the Wilson Agreement, remained in contact with Mr Haynes, and at some point the claimant, who was in the process of expanding his business into debt recovery work, became involved and agreed to take over the claim for Mr Wilson. The result was that in due course a written assignment agreement was entered into on 23 January 2012, having been drafted by South African lawyers, which purported to “cede, transfer and make over” to the claimant “the claim”, recorded as being “claims against [the defendant] on behalf of [Manage] as recorded in [the Wilson Agreement]”.

HISTORY OF EVENTS RELATING TO THE HARASSMENT CLAIM

[21]It is not necessary for me to refer in exhaustive detail to the history of the dealings between the claimant and the defendant in relation to the claimant’s attempts to recover the claims as assigned to him, or to the history of the defendant’s response to that, only to such matters as are relevant to the claimant’s claim for harassment. Apart from anything else, much of the detail is contained in the judgment of HHJ Seymour QC in the previous action, reported as Michael Hall v Kevin Fox

[2012] EWHC 2210 (QB)

and, as Mr Cumming accepted, that decision creates an issue estoppel between the parties in relation to those determinations which are necessary to the decision and fundamental to it: see Spencer Bower and Hadley, Res Judicata, (4th ed. 2009) at paragraph 8.23.

The first two visits to the defendant’s office

[22]On 9 February 2012 the claimant, accompanied at a distance by his colleague, a Mr Nicholas Papadopolous, attended the defendant’s office unannounced, but were unable to speak to him and left. The next day he returned and eventually spoke to the defendant, producing copies of the Wilson Agreement and the assignment, and making it clear that his intention was to collect what was due to Mr Wilson under the Wilson Agreement. It should be emphasised that this visit came entirely out of the blue so far as the defendant was concerned, because there had been no prior telephone call or letter from the claimant to explain his interest, and the last communication to the defendant in relation to these claims had been the letter from Mr Wilson, written some 7 years earlier in early 2005.

[23]HHJ Seymour QC made detailed findings about this visit, which was one of the incidents relied upon by the defendant in the previous action. In short, he was not prepared to accept the defendant’s evidence on any contested matter, or that the claimant’s behaviour on that day amounted to harassment. He said that the defendant struck him as a “somewhat timorous person” and that it “may well be” that the defendant was frightened by the claimant’s physical appearance and his reputation. He was “not satisfied however that whatever fears Mr Hall may have entertained were justified by anything that Mr Fox actually said or did”. In cross-examination the claimant accepted that one purpose of these visits was to remind the defendant, at a face to face meeting, of his promise to pay Mr Wilson, and to make it clear to the defendant that the claimant believed that it was important that “if you give your word you should honour it”.

Contact with Mr Calder and Mr Thomson

[24]The claimant paid a further unannounced visit to the defendant’s office again on 23 February 2012. It is common ground that the defendant sent a colleague, a Mr Calder, out to speak to the claimant, to say that the defendant could not see him. The claimant accepts that he asked Mr Calder to tell the defendant to phone him as “this attitude could have only one outcome”. HHJ Seymour QC considered that the meaning of this statement was obscure.

[25]Later that day Mr Haynes claims that he was contacted by Mr Calder who warned him about his involvement in this matter, saying that Mr Norris had become involved and would be using his influence with government and the Serious and Organised Crime Agency (“SOCA”) to ruin both the claimant and Mr Haynes. The reference to Mr Norris is a reference to Steven Norris, the Conservative politician and former Cabinet minister, who at the time was the chairman of the company of which the defendant was chief executive officer. The claimant’s case is that Mr Haynes called him to relay this information, and that he received the call in the presence of Mr Papadopolous and a friend, Mr Singh, both of whom claim they heard him repeat the references to Mr Norris and SOCA.

[26]Mr Calder, who provided a witness statement and gave evidence at the first trial, but did neither on this occasion, accepted at the first trial that he had spoken to Mr Haynes, who he knew, and told him that the defendant had sought advice from Mr Norris about involving the police, and also told him that the defendant’s view was that if the actions of the claimant and Mr Haynes amounted to misconduct they could both be facing a prison sentence.

[27]The claimant claims that he was also telephoned that day by an old acquaintance Mr Thomson, who now worked for Manage, and that Mr Thomson told him that Mr Norris had contacted the Home Office and had been given a contact number for a director within SOCA to contact, with the intention of having the claimant arrested. Mr Papadopolous claims to have been witness to that telephone conversation because it was taken by the claimant on loudspeaker. It was agreed that the claimant would meet Mr Thomson the following day, so that they could see if matters could be resolved. At that meeting Mr Thomson gave the claimant a copy of a briefing document which had been put together by Mrs Neil and Anthony Hall which, in effect, refuted any liability under the Wilson Agreement. The claimant says that Mr Thomson repeated his comments about Mr Norris’ involvement. Mr Thomson says that in the course of the meeting he stated his belief that what the claimant was engaged in was a “good old fashioned screw”, in other words a consistent application of pressure to the defendant to achieve the claimant’s objective. In cross-examination the claimant accepted that Mr Thomson had “possibly” said this.

[28]Mr Thomson accepted that he had told the claimant that Mr Norris had become aware of what was happening, and that he may have mentioned that Mr Norris had been a Home Office minister, but denied that he had said anything about Mr Norris involving the Home Office or SOCA.

The visit to the defendant’s house on 29 February 2012

[29]Passing over immaterial events, a previously arranged meeting to discuss the claim did not take place so that it is clear, from the claimant’s perspective, that no progress was being achieved with his claim. On 29 February 2012 the claimant, with Mr Papadopolous, paid a visit to the defendant’s house in Wimbledon. That house, which he normally lived in together with his then wife and his children, was then in the course of a substantial refurbishment, so that they were temporarily absent from it. It is not entirely clear how the claimant came to discover the defendant’s personal address. He claims that the visit was not pre-meditated, and that he just happened to be in the area with Mr Papadopolous on other business when the latter suggested paying a visit to the defendant’s house. It appears from the claimant’s witness statement that his hope was that he might find the defendant there, so that he could “put Mr Wilson’s account to the defendant and ask him to be reasonable”.

[30]What is common ground is that the defendant was not present, that the claimant entered with Mr Papadopolous, spoke to some builders and had a look around, and then located and spoke to the site manager, Mr Anning, before leaving the premises. There is a substantial conflict about the detail of what happened at that visit, in particular what the claimant did and said, and how he did and said it, which was considered in some detail by HHJ Seymour QC at the previous trial and which, for present purposes, I can pass over for the time being.

Davenport Lyons’ instruction and their letter dated 12 March 2012

[31]On being told of this visit the defendant immediately instructed solicitors, Davenport Lyons, in particular a partner known as Mr Goldstone, who he described as being an expert in harassment and similar cases. No statement has been tendered or evidence called from Mr Goldstone, but the correspondence between the claimant and Davenport Lyons is in the trial bundle. It was agreed that Davenport Lyons would draft a “cease and desist” letter which could be given to the claimant, in which details of the defendant’s complaints as to the claimant’s conduct could be provided, and a request made for the claimant to provide undertakings, otherwise face the risk of proceedings seeking an injunction and damages under the 1997 Act.

[32]Whilst this was being done, there was then some further contact between the claimant and Mr Thomson, in the course of which:(a) the claimant told Mr Thomson that he had been in contact with a Mr Aggarwal, who also claimed to be owed shares by the defendant, and asked the defendant to meet him;

(b) a meeting was arranged for 13 March 2012 for Mr Thomson to give the claimant a letter from the defendant’s solicitors, with a further meeting being provisionally arranged for the following week, which the claimant says he took as a proposal to negotiate, but which Davenport Lyons intended as the opportunity to serve notice of an injunction application should that be necessary.

[33]The cease and desist letter was duly drafted and a copy of that letter, dated 12 March 2012, was handed over to the claimant by Mr Thomson at the meeting on the following day. It is set out in full in the judgment of HHJ Seymour QC in the earlier proceedings, and I need not repeat it here.

[34]The claimant did not provide any written response to that letter. The defendant did not attend the subsequent meeting which had been arranged for 20 March 2012, but Mr Thomson did, and handed the claimant a copy of a further letter from Davenport Lyons advising that an application for an injunction would be made at the Royal Courts of Justice on 23 March 2012. The claimant did not respond to that letter either.

The application for an interim injunction

[35]The evidence filed in support of the application, as presented to Keith J at the hearing held on 23 March 2012, was subsequently found by HHJ Seymour QC to be deficient and to amount to serious material non-disclosure in two separate and significant respects. The first is that the defendant’s witness statement did not make clear that the claimant had given him copies of the Wilson Agreement as well as the assignment at the meeting on 10 February 2012, and thereby created the false impression that the defendant was at a loss to understand the basis of the claim. The second is that the defendant’s witness statement did not make clear that he had voluntarily accompanied the claimant to a public house to discuss the claimant’s claim, and thereby created the false impression – as Judge Seymour QC put it – of an involuntary and menacing encounter with a character straight out of a Damon Runyon short story. HHJ Seymour also found that the defendant’s witness statement created the false impression that he had obtained a number of witness statements from employees working at the office to support his account, when in fact there were none. Although he did not on my reading of his judgment also find in terms that this amounted to serious material non-disclosure, it seems to me to be clear to have been an implicit finding.

[36]Davenport Lyons were in difficulties in serving notice of the injunction application upon the claimant, because the only contact detail they had was a mobile telephone number belonging to and held by Mr Papadopolous. The claimant had not provided any personal or business contact details to the defendant, and there was no business website from which they could be obtained. On 22 March 2012 Mr Goldstone telephoned the mobile telephone number given by the defendant and spoke to Mr Papadopolous who, unknown to Mr Goldstone, had just been discharged from hospital after hip replacement surgery. Mr Papadopolous refused to identify himself, but did agree to pass on to the claimant the message that the defendant would be making an application for an injunction at the Royal Courts of Justice tomorrow morning. Mr Goldstone then sent text messages to that phone number to confirm the discussion, two later that evening and two the next morning, the first at 06:33 hours. Mr Papadopolous claims to have been concerned and alarmed by these communications.

[37]The claimant did not attend the hearing before Keith J, and an interim injunction was made in terms set out by HHJ Seymour QC in his earlier judgment. It was continued with some modification at a further hearing before Underhill J (as he then was) on 3 April 2012, at which the claimant was present and made representations. Directions were given for a speedy trial, which came on for hearing on 17 July 2012, with the result that I have already described.

Davenport Lyons’ letter of complaint to the police

[38]On 28 March 2012 Davenport Lyons wrote to Detective Chief Superintendent Williams at Wimbledon Police Station, attaching copies of the order made by Keith J and the application and evidence in support, and stating that “on our recommendation [the defendant] wishes your police station to be notified of the court injunction order”. They asked DCS Williams to “appoint a Detective Inspector in the first instance to investigate the wider issues arising out of the enclosed documentation”. On 13 April 2012 Davenport Lyons wrote again to DCS Williams, expressing their concern that no action appeared to have been taken in response to their earlier letter. They stated that “Mr Fox appears to be a dangerous criminal, clearly determined to ignore normal due process and apparently intent on harm”. They repeated their request that DCS Williams should immediately appoint a DI to investigate.

[39]It appears that this was then acted upon, because the internal CRIS police reports disclosed by the police show that on 20 April 2012 the defendant spoke to a DI Cox and discussed his intentions and what he would like the police to do. As a result DI Cox spoke to the claimant, said that he was studying the papers provided by both sides very carefully, and warned him to conduct himself for the future “in a manner which kept him the right side of the criminal law”. He records the claimant as being “perfectly polite and assured me that he would keep things legal”.

[40]The CRIS reports also disclose that on 4 May 2012 the defendant attended again and spoke to DI Cox, to confirm that he wished to proceed with the criminal complaint. They also disclose that on 10 May 2012 he contacted the station to chase progress and meet with the detective sergeant to whom the case had been assigned.

Davenport Lyons’ contact with Sarah Higgison

[41]Ms Higgison was the manager of the Churchill Business Centre, Walthamstow, where the claimant or his company at that time had an office address. The claimant says that on 19 April 2012 she complained to him that she had received two calls from persons enquiring about him, and that she had put the second caller “on notice for harassment and warned the caller to cease contact”. The claimant, believing – correctly as it transpired at least in relation to the second call– that the caller was from Davenport Lyons, wrote to them asking them to desist from such contact, and received a letter in return confirming that they had done so.

The claimant’s arrest and release on conditional bail

[42]It is apparent from the CRIS reports that following further enquiries made by the police, including enquiries made with Mr Wilson, they decided to investigate further. On 16 May 2012 the claimant attended Wimbledon Police Station at the request of the police, and was arrested on suspicion of blackmail, by reference to the complaints made by the claimant and Davenport Lyons on his behalf. He says that this came as a complete shock to him. He was interviewed and released on police bail subject to a condition not to go to the road on which the defendant’s house stood. Bail was subsequently extended on the same terms until 31 July 2012.

The first trial

[43]The claimant complains that counsel then instructed by the defendant included in his opening address reference to the fact that the claimant had been arrested and was currently on bail, which he regarded as “worrying and extremely distressing”.

[44]There is also a complaint by the claimant that at the end of the first trial, after the claim had been dismissed, counsel for the defendant applied, unsuccessfully, for a further injunction against the claimant, on the ground that a car had been seen in the vicinity of the defendant’s house. That event is not recorded on the official transcript, and Mr Cumming cross-examined the claimant and his witnesses on the basis that it did not happen, but when the defendant gave evidence he admitted that it did, and said that it was made on the basis of information provided by his then wife.

The harassment notice

[45]The claimant states that although he was informed that the police would not be taking any further action in relation to the blackmail allegation, nonetheless on 30 July 2012 he was asked to attend Wimbledon Police Station the following day to receive a harassment warning. He says that despite his protests that this was inappropriate, given the dismissal of the defendant’s harassment claim, the police insisted that he should do so. He says that the following day, when he attended with his solicitor, although the police subsequently recorded that he had been issued with a harassment warning in fact no such warning was ever issued. The claimant pursued a complaint against the relevant police officer in relation to this matter, but that complaint was not upheld.

THE WITNESSES

[46]That then concludes the chronology of relevant events, and I turn now to my assessment of the witnesses. I shall begin by setting out my conclusions in relation to the claimant and the defendant as the principal protagonists, and then proceed to consider the other witnesses in the order in which they gave evidence. The claimant

[47]The claimant is a man, now in his 40s, with a chequered past. He has for many years been involved in the security business as a security consultant, undertaking occasional debt collection work as a sideline. In March 2004 he was arrested on suspicion of being involved in a gold bullion robbery. He was subsequently, on 2 March 2006, convicted on a guilty plea and sentenced to a total of 7 years’ imprisonment for firearms and theft offences in relation to his involvement in that robbery. He served at least part of his sentence in HMP Belmarsh, where he was a high security prisoner, before being released in September 2007. It appears that on his release from prison he resumed his previous occupation of security consultant and occasional debt collector.

[48]Apart from the convictions to which I have referred he has no other criminal record. There is no evidence before this court to the effect that he is involved in organised crime or the like, and indeed he has friends, themselves of good character, who speak highly of him. It is said that he is a reformed character. Nonetheless, it is clear that he has the look of someone who can take care of himself, and it is also clear that respect is important to him. He does not come across as someone who easily loses control, and I think that he can fairly be described as calculating.

[49]He is also obviously an intelligent man, who has through his own endeavours clearly acquired a good knowledge of substantive and procedural law. His intelligence and his determination are displayed in the resourceful and tenacious way in which he successfully defended the previous claim and in which he has pursued and presented this case as a litigant in person.

[50]He is also well able to assert his rights, as demonstrated both by his conduct in this case and in the previous case. Indeed, albeit with representation by solicitors, he pursued a complaint about his treatment by the police whilst being arrested in March 2004, right up to the European Court of Human Rights. Subsequently, again with legal representation, he issued proceedings for damages arising out of that same incident. As I have said, he also pursued a separate complaint about his treatment by the police in connection with the harassment warning relating to this case.

[51]What however about his honesty and his reliability as a witness? Having observed him give evidence under forceful and skilful cross-examination for the best part of a day, I am not satisfied that he is either completely honest or completely reliable as a witness. In my judgment he gave the evidence which he considered would support his case, rather than his genuine best recollection of events. A number of matters have led me to reach that particular conclusion, the most significant of which I mention below:(1) First, whilst I acknowledge that his evidence on this point was corroborated by the evidence of Mr Wilson and Mr Haynes, I was simply unable to accept his evidence that he attended a meeting with these two men and the defendant in Enfield in 2002 before the meeting at the Bloomsbury hotel at which the Wilson Agreement was signed. It seemed to me that he was unable to give any sensible explanation as to why he should have been involved in this matter at that time, or indeed why all three should have come out to Enfield to seek his input on a matter which was of no conceivable concern of his. Indeed, when asked about the details of that meeting he was unable to give any clear or convincing explanation. It seemed to me that his evidence on this point, like that of Mr Wilson and Mr Haynes, was contrived in order to explain why he had become involved in this matter later in 2012, and I am unable to accept it.

(2) Second, his evidence was in my view thoroughly evasive and unimpressive as regards the circumstances in which he had come to be involved in this matter and take an assignment of the claim in late 2011 / early 2012. He claimed to be unable to recall any detail as to how and in what circumstances he had been introduced to Mr Wilson, and had failed to disclose any emails or other contemporaneous documentary evidence in this regard. I found it quite incredible that he claimed to have no clear recollection of how he had come to be involved. I also found it quite incredible that there were no relevant emails, given that: (i) at the time he was living and working in London, whereas Mr Wilson was living and working in South Africa; (ii) both agreed that they had been introduced (or, on their version, re-introduced) by Mr Haynes; (iii) the claimant had voluntarily disclosed subsequent emails which showed quite clearly that he and Mr Wilson were perfectly happy to, and undoubtedly already had, corresponded by email previously in relation to this matter; and (iv) that Mr Wilson had involved South African lawyers to draft the assignment. At one point the claimant appeared to suggest that it was possible that his first contact, or first email contact, was not with Mr Wilson but with those lawyers, which seemed to me to be completely incredible. I was driven to the clear conclusion that there were indeed earlier relevant emails, which would have shown quite clearly how and in what circumstances the claimant had become involved, which he was not prepared to disclose and in respect of which he had suffered convenient amnesia. Indeed it was quite clear that there must have been at least a number of emails between the claimant and the South African lawyers, because the claimant admitted that he had deleted a provision relating to his making an up front payment of £20,000 to Mr Wilson, in circumstances where neither the claimant or Mr Wilson had said anything about there being any agreement that Mr Wilson should receive some payment for the assignment in their evidence until Mr Wilson admitted it in cross-examination.

(3) Third, it seemed to me that the claimant was only too willing to engage in convenient amnesia whenever he felt that to give a clear answer might weaken his case. If the quality of his recollection had been generally poor, then I would not have been particularly surprised. But it was the combination of the extremely impressive quality of his recollection when it suited him and the extremely unimpressive quality of his lack of recollection when it did not which particularly struck me, particularly when it involved recollection of events happening very close together.

(4) Fourth, there were other occasions when his explanations seemed to me to lack any credibility. For example he accepted as I have said that he told Mr Calder that there would only be one outcome. When asked what he meant by that, he gave what seemed to me to be a completely ludicrous explanation to the effect that it would end up with the defendant involving other people, when of course by that stage it would have been obvious to him that this was what the defendant had already done anyway, and when it seems to me to be clear that what he really meant was that the only outcome would involve the defendant, through application of pressure by the claimant, agreeing to pay him what the claimant believed he owed under the Wilson Agreement.

(5) Fifth, the claimant’s witness statement sought to give the impression that he was alarmed by the conduct of the defendant and his lawyers when it was patently obvious that he was not remotely alarmed by it. Those parts were clearly added to bolster the harassment claim, rather than because that is what the claimant genuinely felt at the time.

(6) Sixth, the claim for substantial damages for financial loss for harassment was completely unmeritorious, and supported by no documentation other than 2 letters, drafted by the claimant, purporting to be from people not called to give evidence.

The defendant

[52]The defendant has enjoyed a successful career in business, more recently particularly in property development and private equity investment. He married the daughter of a well known actor and lived in a house in Wimbledon with his wife and children. He came to be involved in the private security industry through his friendship with Mr Wilson. It is as a result of this involvement that he eventually came into contact with the claimant. It is clear that he found this contact, particularly given his concern that it might impact on his family, and result in adverse publicity, extremely worrying. That led to his bringing the previous harassment claim, resulting in the disastrous failure of the claim following the trial before HHJ Seymour QC. The current proceedings followed on shortly thereafter, with the result that he has been embroiled in litigation now since March 2012. It is clear that this has all taken a heavy toll on him. Thus his marriage has collapsed, his business affairs have suffered, and he has come to suffer from a major depressive disorder. Rightly or wrongly, he ascribes all of this to the claimant.

[53]Whilst of course anyone will have sympathy at a human level with anyone who has experienced such personal misfortunes, I must not allow that natural sympathy to influence my assessment of the defendant as a witness. My overall conclusion is that I cannot be satisfied that he was completely reliable as a witness. My assessment of him is as follows:(1) Prior to the events in question, it seemed to me that as well as being shrewd and successful in business, he was also capable of acting ruthlessly in a business sense where necessary, including as against those who were his friends. Thus, regardless of the rights and wrongs, the reality is that he did conceive and execute a plan without prior reference to Mr Wilson whereby the business he had founded with Mr Wilson survived, but only at the expense of Mr Wilson being cut out of that business. Moreover, and regardless of the rights and wrongs, he also came to fall out with his friend Mr Aggarwal in circumstances where on any view he was only prepared to advance monies to Mr Aggarwal on fairly tough commercial terms. I emphasise that there is nothing remotely improper or illegal in any of this, but it does demonstrate someone who is prepared, where necessary, to display a ruthless streak in business to achieve his own ends.

(2) That streak was also evident in his dealings in relation to the formation of Manage. He was prepared to offer Mr Wilson the prospect of a shareholding in Manage, as part of the price for Mr Wilson agreeing to allow Trafalger’s business to be transferred to Manage and to step aside, but to conceal that agreement from Mr and Mrs Neil and Mr Aggarwal in the knowledge that they would not have agreed to Mr Wilson being given a shareholding. Furthermore his evidence that he was not responsible for the production of the Wilson Agreement, and that it was left to some operations director to draft, seemed to me to lack credibility, and was an attempt by him to seek to distance himself from any criticism of its terms.

(3) Whilst I have no doubt that he was genuinely disturbed by the claimant’s approach, and did feel threatened both personally and for his family, I am also satisfied that he was also determined to show the claimant that he was not prepared to bow to this pressure and thus, subsequently with the assistance of Davenport Lyons, he embarked on an aggressively waged counter-campaign, resulting in the injunction proceedings and the first trial. I am satisfied that it was his intention to seek to convey the message to the claimant that he was a man with powerful connections and deep pockets, and not afraid to use both to squash the claimant. I am also satisfied that along the way he was prepared to exaggerate his evidence in order to seek to promote his case.

(4) Given the strength of his view that it is the claimant who is responsible for the problems which he has more recently experienced, it is difficult for me to accept him as a dispassionate and a reliable witness of fact. Having listened to him being cross-examined with great skill and commendable moderation by the claimant over a prolonged period, I am satisfied that I am unable to do so, and that I must not accept his evidence uncritically save where corroborated by evidence which I am able to accept.

Mr Ian Wilson

[54]Mr Wilson came across to me as someone whose reliability was adversely affected both by the lapse of time but also, in my view, by his strongly held belief that he had been treated very badly by the defendant. He also freely admitted that his strengths lay more on the operational than on the organisational side, so that his recollection as to the detail of what had happened in terms of contractual arrangements, financial dealings and the like was not particularly strong. He also admitted to a number of errors in his witness statement. One such error, being the not insignificant question as to how much he had been paid by Manage, appeared to have been little more than guesswork on his part, in circumstances where he had not made any real effort to obtain the bank statements which on his account showed the position until he travelled to the UK shortly before the trial was due to begin. He also admitted that he had previously been barred from a venue for misconduct in the course of his employment there, and admitted to not telling the truth to the defendant about whether or not the claimant had paid him his claim under the Wilson Agreement as part of the arrangement under which he had assigned the claim to the claimant. That was particularly relevant because the true position, as he admitted in cross-examination, was that he had agreed to assign his claims to the claimant on terms that he was to receive £20,000 should the claim succeed, so that he has a direct financial interest in giving evidence to support the claimant’s case.

[55]There were occasions where it seemed to me that he was consciously “trimming” his evidence. For example he began by accepting that he had taken advice from a lawyer in South Africa before signing the Wilson Agreement, giving no indication that the lawyer had not seen it before advising. However, when it was then put to him that this meant that he must have seen the document before the meeting at which he signed it, it seemed to me that, recognising that this would not assist his case, he changed his evidence, saying first that he could not remember and then that he had “definitely” not given a copy to the lawyer, and had just spoken about it to him over the telephone during the meeting.

[56]I am not satisfied that he was a reliable witness, and in relation to his evidence on issues which are significantly in dispute I am unable to accept it uncritically.

Mr Amish Aggarwal

[57]Mr Aggarwal is someone who, like Mr Wilson, had been involved in a business venture with the defendant in circumstances where he subsequently claimed that the defendant had failed to honour his promises. It is clear that Mr Aggarwal, like Mr Wilson, feels very badly let down by the defendant. He lost little opportunity in cross-examination to promote his own adverse views of the defendant. There were also some errors in his recollection, for example as to the source of the funds loaned to him in 2007.

[58]In the circumstances, my assessment of him is broadly the same as that of Mr Wilson. However since much of his evidence was, it seemed to me, irrelevant to the real issues in the case, that does not really matter very much. He was not challenged on the one issue of potential relevance to this case, which is that neither he nor his father were consulted about or agreed to Manage entering into the Wilson Agreement. However, since on any view(1) the claimant had authority at the time to conclude the agreement on behalf of Manage;

(2) there is not, nor could there realistically be, any allegation that as a result of that lack of agreement the defendant in some way should be regarded as having assumed personal liability to Mr Wilson under the Wilson Agreement, that point does not go anywhere.

Mr Mal Barter

[59]Mr Barter made a favourable impression on me as a witness. He had produced a witness statement which was concise and restrained, and his evidence was of a similar quality. He appeared to have no particular axe to grind. The only part of his witness statement which was in any way contentious was his statement that he had always understood that Mr Wilson would receive his 2.5% shareholding from the defendant’s shareholding in Manage. Whether or not that is what the Wilson Agreement actually provided is for me to decide in due course, but I have no reason to doubt the genuineness of Mr Barter’s belief; there would have been no reason why any of the other investors should have felt obliged to dilute their shareholding in order to assist the defendant to buy out his partner in Trafalgar.

[60]Mr Barter was also asked about his knowledge of whether Manage had paid Mr Wilson all that he was due, or reached a compromise with him. He accepted that this was not his area of responsibility, but was very clear in his evidence that he had never been made aware that this had happened, and that Terry Neil had given him to understand that he was not prepared to pay Mr Wilson all that was due under the Wilson Agreement. I accept that evidence, and as I note in due course, there is no compelling documentary or other evidence produced by the defendant to show the contrary.

Mr Mason Haynes

[61]Mr Haynes came across to me as someone whose reliability was adversely affected both by the lapse of time and by his strongly held belief that his very close friend Mr Wilson had been treated very badly by the defendant. Thus he was keen to seek to contend that the only reason why Mr Wilson did not take proper advice before signing the Wilson Agreement was due to the trust he placed in the defendant, when I am satisfied that the true position is that by that point there was no question of Mr Wilson placing blind trust in the defendant, and that he was happy to enter into the agreement even though his lawyer friend had advised against because he was satisfied that it was a good deal for him. It also seemed to me that Mr Haynes’ view, expressed in paragraph 16 of his witness statement and confirmed in cross-examination, that the defendant had procured Mr Wilson into signing the Wilson Agreement by misrepresentation and with no intention of honouring it, was not based on any hard evidence. I was not impressed by his evidence, which emerged for the first time only under cross-examination, that the defendant had confirmed to him on many occasions that he was holding Mr Wilson’s shares in Manage on his behalf. It also seemed to me that he was reluctant to admit both in his witness statements and oral evidence what seems to me to be obvious, which is that the reason he put Mr Wilson and the claimant in contact in late 2011 was because he believed that the claimant could extract a settlement from the defendant without recourse to legal proceedings.

[62]Finally, in relation to his evidence that he had been told by Mr Calder that Mr Norris had become involved and would be using his contacts within government and SOCA to investigate both the claimant and himself, that was inconsistent with what he had said in evidence in the first trial, where he had referred to Mr Norris and the police but not to SOCA or the government, and it seemed to me that he was seeking to bolster the claimant’s case in that regard. Indeed, it was telling that when he was asked about this in cross-examination in this case he made no reference to SOCA.

Mr Valmeekee Singh

[63]Mr Singh is a serving fire fighter and ex police officer, who has been friends with the claimant for many years. The relevance of his evidence was to corroborate the claimant’s account of what he had been told about the involvement of Mr Norris and SOCA. However he did not have direct evidence of this, only what he had overheard from a telephone conversation to which he was not party, and what the claimant had told him.

[64]Although I am satisfied that Mr Singh is an honest witness, I am not satisfied that he has a very clear or detailed recollection of events to which he was not a direct party and, in particular, I am not satisfied that he has a reliable recollection as to precisely what was said about what Mr Norris was going to do. At one point he said that “it’s all a long way back”. I do not consider that he now has any recollection independent of the claimant as to precisely what was said. I also consider that he has been prevailed upon to include detail in his witness statement about the claimant being “distressed” and “alarmed” by the contact from the defendant’s solicitors, when I simply do not accept that this was the case. Indeed in cross-examination he accepted that he had allowed the claimant to add “padding” to his witness statement in relation to matters about which he could not personally speak.

Mr Nicholas Papadopoulos

[65]Mr Papadopolous is, and has been since early 2012, a consultant for the claimant’s business, Patron Services Limited. I am afraid that I did not find him at all a convincing witness. In particular, I found unconvincing his explanations as to why he had given the claimant his spare mobile telephone to use for contact with the defendant and why he had been present, but not just concealed but unable to see what was transpiring, at the visits to the defendant’s office; in my judgment the obvious answer is that the claimant did not want his mobile phone to be traced which is why he used Mr Papadopolous’s spare, and wanted Mr Papadopolous there as back-up if needed.

[66]I also found unconvincing his explanations as to why he had suggested to the claimant that they visit the defendant’s house. He said that they knew it was a building site rather than a home (which I am prepared to accept because I am satisfied that they had previously driven past the house), but also that they went in simply because they were in the area anyway, and decided to pop in to see if he happened to be present, so that they could try to establish contact and provide him with details of the claim, I find that unconvincing in the extreme. If they did know that it was a building site it seems very unlikely that they decided to visit just in case the defendant would be there. Although Mr Papadopolous made great play of how normal it would be to find and speak to the site agent before leaving, there is no good explanation why that was not the first thing they did when they were visiting a construction site unannounced and without permission. Finally, although he contested the detail of what Mr Anning said in his witness statement about what happened, it is notable that he did not even refer to having had any conversation with Mr Anning in his witness statements.

[67]It also seemed to be that he had been guilty of allowing his witness statement to be embellished to support the claimant’s case in relation to harassment. I also found his evidence as to the “alarm” he had been caused by the contact from the defendant’s solicitors contrived. The reality is that he knew that this was the only phone contact they had for the claimant, and he was not prepared to give them the claimant’s number or even his own name. It cannot in my judgment have been alarming for him to receive texts from the defendant’s solicitors on the day of an injunction application about which he had been made aware.

Mr Douglas Thomson

[68]Mr Thomson was the first witness called by the defendant. He came across as an honest witness with a reasonable recollection of events. He had clearly been introduced by the defendant in February 2012 as an “honest broker”, able to command the respect of the claimant due to his previous acquaintance with him, and it seemed that he was able to do so. There was really only one difference of substance between his recollection and that of the claimant, which is what had been said in the initial telephone conversation and subsequent meeting between them, and I prefer Mr Thomson’s evidence on that particular point.

Mr Mark Anning

[69]Mr Anning came across as an honest witness, but with a somewhat unreliable recollection of events. His evidence was limited to the claimant’s visit with Mr Papadopolous to the defendant’s house. However, much of his evidence appeared to consist of what he had been told by other builders present when the claimant first presented at the house, who had not themselves been called nor had contemporaneous statements been obtained. Further, it seemed to me that his evidence as to hard facts, as opposed to impression, did not really amount to very much. There were some inconsistencies in his account, and I considered that he had been persuaded in his witness statement in the first action to overplay matters somewhat for the benefit of his then client.

Mrs Soraya Neil

[70]Mrs Neil came across as an intelligent and successful business woman. However she did accept that she had limited knowledge and recollection of the detail of certain matters, such as the Wilson Agreement, as to which she had not been informed at the time, and also that due to the passage of time she had been unable to locate quite as much by way of documentation as she would have been able to do earlier. It seemed to me that she was keen to support the defendant, and I did not consider that I could accept all of her evidence absolutely uncritically. Her most important evidence related to the defendant’s case that any liabilities arising under the Wilson Agreement had been satisfied or compromised, as to which:(a) it seemed to me that she had very little first hand knowledge, and was limited to commenting on the contemporaneous documentary evidence;

(b) it also seemed to me that her recollection was probably of doubtful accuracy, for example as to the manner and destination of payments made to Mr Wilson. Thus, on that issue, I felt unable to place uncritical weight on her evidence, and must consider and weigh the contemporaneous documents and the conflicting evidence in order to reach a conclusion.

Witness statements received in evidence without the maker being called

[71]The defendant had served a witness statement with a Civil Evidence Act notice from Mr Norris. The notice was served on the basis that Mr Norris was unable to attend the trial on the date previously listed (it was subsequently vacated due to the defendant’s illness). Although the claimant objected to the statement being admitted on the basis that it was served late, that objection was dismissed and permission was given by Males J to the defendant to rely on it. The claimant did not however also object to the hearsay notice and require Mr Norris to be called to give oral evidence. Accordingly, even though there was no evidence before me that Mr Norris was unable to attend this rescheduled trial to give oral evidence, it seemed to me that the defendant was entitled to adduce the statement in evidence, albeit that I would have to consider what weight I should properly attach to it in circumstances where I did not have the advantage of seeing Mr Norris cross-examined on its contents.

[72]In short, Mr Norris said that his involvement was limited to passing on advice to the defendant from a retired senior police officer and old friend that the defendant should report his concerns about the claimant’s conduct to the superintendent at his local police station. He denied in terms having made contact with anyone at the Home Office or SOCA, or having made any threat to use his influence to have the claimant or Mr Haynes arrested by the police.

[73]Since that evidence is consistent with the evidence of Mr Thomson, whose evidence I accept, and inconsistent only with the evidence of the claimant and his witnesses on this point, whose evidence I do not accept, I accept that evidence. I should also say that there is absolutely no evidence that anyone other than police officers stationed at Wimbledon police station were ever involved in this matter, nor any evidence that their involvement or their conduct was in any way directed or affected by anyone in government or in SOCA. Moreover, there is no basis for suggesting that their conduct in relation to this matter was anything other than entirely proper. The only complaint made by the claimant about their conduct related to the harassment notice, which can have had nothing to do with Mr Norris, and was rejected anyway. It follows in my judgment that the evidence of Mr Norris is entirely consistent with the surrounding circumstances as well as with the other witnesss whose evidence I accept as reliable.

[74]Finally, and in response to the claimant’s late amendment to the Particulars of Claim, I permitted the defendant to rely on two further statements regarding the shareholding in Finecourt, to which the claimant made no objection.

THE ISSUES IN RELATION TO THE WILSON AGREEMENT

[75]The following issues arise.

Was the defendant a contracting party under the Wilson Agreement?

[76]It is quite clear in my judgment that on its true construction the defendant did not undertake any personal liability under the Wilson Agreement. In the first place, it is an agreement which does not purport to have been entered into by him personally, since he signed it expressly for and on behalf of Manage. Insofar as it was suggested that there was some ambiguity as to the identity of the contracting party, since – as is common ground – there is and was no such separate legal entity as TSS Trading Limited, I am satisfied that it is clear from the contract itself that this is irrelevant, since whatever the position of that non-existent company it is clear that Manage was, and was intended to be, a party. Insofar as there is any need to do so, I am satisfied that by reference to the contemporaneous factual circumstances as known, objectively, to both parties, there was no ambiguity, in that:(a) at that time Manage existed, whereas TSS Trading Limited did not;

(b) it was known that the plan was to operate the new business under the trading style TSS to give the impression of continuity with the old business;

(c) thus the reference to the non-existent company was, and could easily have been seen to be, a mere error. I reject the claimant’s submission that the reference to TSS Trading Limited was a deliberate “time bomb” inserted by the defendant into the document to use to seek to defeat any claim made under the Wilson Agreement for the future. There is no credible reason why the defendant should have wanted to proceed in such a way and, indeed, apart from some passing reference to the issue in the letter given to Mr Thomson to give to the claimant, it has not featured at all as a defence in this case.

[77]Moreover, there is no indication from the operative parts of the contract that the relevant obligations undertaken vis-à-vis Mr Wilson were to be performed by anyone other than Manage. Thus clause 1 is silent as to who should make the monthly payments totalling of £87,500, from which it may be assumed in the absence of anything to the contrary that it would be the other contracting party, i.e. Manage. The same is true of clauses 2 and 3 in relation to the remuneration to be paid to Mr Wilson for work done by him for Manage. Clause 4 expressly requires the shares to be allocated by Manage itself; there is no obligation upon the defendant to transfer the 2.5% shareholding from shares within his ownership or control. There is no further or separate express obligation on the defendant to procure that Manage complies with its obligation under clause 4. Finally, clause 5 imposes an express obligation on Manage to pay Mr Wilson the profit share.

[78]At trial the claimant established by cross-examination that Mr and Mrs Neil were not made aware of the written terms of the Wilson Agreement at the time it was entered into, and were only provided with a copy of the document sometime later in 2003. It appeared from Mrs Neil’s evidence and that of the defendant that although Mr and Mrs Neil were aware of the agreement in relation to payment, and consultancy and door work, in clauses 1, 2 and 3 of the agreement, they were not aware of the agreement in relation to shares in clause 4 until they saw the document itself. However it is also clear from Mr Barter’s evidence that he was aware of the agreement in relation to shares, albeit he was under the impression that the shares would come from the shareholding allocated to the defendant’s order, and of course he was also a signatory – albeit only as a witness – to the Wilson Agreement. Moreover, the Wilson Agreement was entered into at a time when the defendant was in sole control of Manage, and before the shareholdings had been allocated in accordance with the Shareholders Agreement, which contained restrictions on the allocation and transfer of shares. It follows in my judgment that there is no foundation for contending that the defendant should in some way be held personally liable on the Wilson Agreement, whether in whole or in relation to the shares, on the basis that he was not properly authorised to enter into an agreement in those terms by all those who subsequently became shareholders in that company.

[79]Insofar as it is suggested that the Wilson Agreement should be construed by reference to the personal assurance which it is said the defendant gave to Mr Wilson and others before the Wilson Agreement was signed, as I find below no such assurance was given. Moreover, even if such an assurance was given, it could not in my judgment as a matter of law be said to be relevant to the construction of the Wilson Agreement.

Pre-contractual assurance

[80]Although strictly irrelevant to the question as to whether a pre-contractual assurance was given at all, a question which does arise is whether or not the claimant was present at any meeting at which any such assurance was given. As I have already said, I am not satisfied that he was. There is no independent contemporaneous confirmation of his presence; he is not, for example, unlike Mr Haynes and Mr Barter, a witness to the Wilson Agreement.

[81]Moreover, as I have said, there was no obvious reason for him to have been there. Mr Wilson had his trusted friend Mr Haynes with him for support. There is no indication of the claimant having featured in the story at that time. He does not appear to have had any involvement with Trafalgar, with Mr Barter’s business FSS, with Mr and Mrs Neil’s business, or with Mr Aggarwal for that matter. There is no independent corroboration of Mr Wilson’s account, given for the first time in cross-examination, that he involved the claimant because, if he had chosen the second option of taking back his contacts and setting up in business again by himself, he was planning to involve the claimant in that process.

[82]It seems to me most probable that the claimant was not involved at the time, and that he and Mr Wilson, supported by Mr Haynes, have claimed he was there in order to seek to support the claimant’s version of events, which would seek to explain why he became involved in taking the assignment, namely that he had a pre-existing personal interest in the original transactions.

[83]Regardless of my conclusion as regards that point, in any event I am not satisfied that the defendant did give any clear, specific assurance such as is contended for by the claimant at any meeting leading up to the signing of the Wilson Agreement. I am perfectly prepared to accept that during the course of the discussions leading up to the signing of the Wilson Agreement the defendant would have assured Mr Wilson that he would not – as Mr Wilson’s friend – allow him to be excluded from the business without receiving proper compensation, but it does not seem to me that this was in the context of any distinction being drawn as to whether that compensation would be paid by the new company or the defendant, or if the former whether it would be guaranteed by the defendant. There is no evidence, or reason to believe, that at the time anyone gave it a moment’s thought. There is no suggestion, for example, that one reason given by Mr Wilson’s lawyer friend for advising him against signing the Wilson Agreement was that he was accepting obligations from a company rather than from individuals. Mr Wilson accepted in cross-examination that it was his understanding that “the new company was going to be paying me out [under] this agreement”, and never suggested that he had or raised any concern about that.

[84]Moreover, this is not a case where the claimant can say that the personal assurance, even if made as he contends, gave rise to some separate or independent legal obligation. That is because if the assurance meant anything in law it can only have meant that the defendant was guaranteeing that Manage would perform its obligations to Mr Wilson under the Wilson Agreement. However any such guarantee would need to satisfy the formalities of the Statute of Frauds to be enforceable, and there is no suggestion that it was anything other than oral.

Piercing the corporate veil?

[85]In paragraph 15 of his Reply to the defendant’s Defence and Counterclaim the claimant contended that the corporate veil “has been pierced due to [the defendant’s] fraudulent behaviour”, as particularised in specified paragraphs of his Further Information. In short, it is claimed that the chronology of events as contended for by the claimant demonstrates that the pre-contractual assurance given by the defendant was false and made deceitfully, and that by producing the Wilson Agreement in terms that imposed liability on Manage as opposed to himself personally and then by failing to take steps to ensure that Manage performed the obligations owed to Mr Wilson under the Wilson Agreement, the defendant was acting fraudulently and seeking to hide behind the corporate veil. However in my judgment there are a number of fundamental and insuperable obstacles to such a argument.

[86]As stated in Halsbury’s Laws of England 5th edition, Companies (volume 14) at paragraph 121:

“The court will pierce (or lift) the corporate veil, not because it considers it just to do so, but because special circumstances exist indicating that it is a mere facade concealing the true facts.”

[87]In relation to the alleged pre-contractual assurance, I have found that I am not satisfied that one was given, let alone that if it was given it was made fraudulently. Even however if that is wrong, and a clear, specific assurance was given, I am not satisfied that the claimant could show from this that the Wilson Agreement was a mere façade such as to justify piercing the corporate veil.

[88]Although it is suggested that the defendant ensured that the Wilson Agreement was drafted so that he could hide behind the corporate veil, there is absolutely no basis in my judgment for this argument. Given the terms of the proposed arrangement, there would have been no particular reason for the defendant to have accepted personal liability for all of the obligations taken on as part of the agreement under which Mr Wilson was to cease involvement in the business going forwards. It is clear from the evidence that the monthly instalment payments were made until December 2002 and, as I find, were made by Manage not the defendant. If the defendant had all along intended to defraud Mr Wilson by hiding behind the corporate veil those payments would never have been made. The commercial terms of the Wilson Agreement, under which Mr Wilson was to receive the £87,500, plus further payments for providing services to Manage, plus shares in Manage, plus a profit share to be paid on business introduced by Mr Wilson and transferred to Manage, are all perfectly consistent with Manage being responsible for all liabilities under the agreement.

[89]I therefore reject this argument, even insofar as it is open to the claimant to advance it, given the absence of particulars either as to his case as a matter of law or his case as to on what basis it is said that it would be proper to find the defendant guilty of fraud.

Post contractual assurances in relation to the shares

[90]It is the claimant’s case that on more than one occasion the defendant assured Mr Wilson in telephone conversations that he was holding Mr Wilson’s shares for him and that they were worth a considerable amount of money. It is the claimant’s case that this is corroborated by Mr Wilson’s subsequent letter of early 2005, and by the content of the board meeting minutes for Manage of 8 August 2003.

[91]The claimant also seeks to place reliance on what the defendant said in cross-examination at the first trial, when he said after some intense cross-examination, in answer to the question “What you’re saying is that you hold Mr Wilson’s shares in trust. Simple question: yes or no”, “Yes, correct ... my trust holds them on his behalf, correct”. The reference to “my trust” can be seen from his earlier answer to be a reference to Daimon Inc.

[92]In my judgment the terms of the early 2005 letter are consistent with the defendant having said to Mr Wilson, on a number of occasions, that the value of the shareholding to which Mr Wilson had been entitled to subscribe under the Wilson Agreement could be as much as £40,000, and could rise to as much as £150,000 plus if the business continued to prosper. However I do not accept that the letter is consistent with the defendant having given a clear assurance to Mr Wilson that he personally was holding or keeping the shares for him, on trust or otherwise. There are a number of reasons for this:(1) First, all the letter says is that the defendant currently holds the shares for Mr Wilson. That however seems to me to be a fairly broad and imprecise statement.

(2) If Mr Wilson had believed in early 2005 that the defendant had undertaken a personal obligation to perform the clause 4 obligation under the Wilson Agreement, it does not explain why he referred to 1% not 2.5% nor why he, in effect, was seeking to persuade the defendant to accept some proposal under which he received, sooner rather than later, some lesser amount than that which both apparently believed the shares were worth.

(3) Mr Wilson’s version of events in this regard is not particularly consistent or reliable. Thus in cross-examination Mr Wilson claimed that this had also been said by the defendant in person at the time he was leaving for South Africa, whereas that had never previously featured in the claimant’s case or in Mr Wilson’s evidence, which is surprising if it was true.

[93]I have also had regard to the evidence given by the defendant in the previous proceedings. However I do accept that on balance this evidence, given I accept at a time when the question of the precise status of Mr Wilson’s entitlement to shares in Manage was not something which the defendant had considered as part of his preparation for that trial, does not represent his true understanding of the position, either at the time or at trial or now. Even if I am wrong about that, it is not in my judgment fundamentally inconsistent with the conclusion which I reach. In my judgment the most likely explanation, on the balance of probabilities, is that Mr Wilson and the defendant had in 2002 or 2003 discussed the question of the shares, and the defendant had given Mr Wilson to understand that he regarded himself as under an obligation to Mr Wilson as a friend to do his best to ensure that if and when the shares in Manage held by Finecourt came to be sold Mr Wilson should receive something equating to the value of a 2.5%, or possibly a 1%, shareholding, from the shares held in the family trust. I am however satisfied that nothing was said which was capable of amounting to a personal assurance by the defendant to the effect that he personally was holding a specified number of shares, whether 2.5% or 1%, on behalf of or in trust for Mr Wilson. He would have had no reason to make such a statement, which I am satisfied is inconsistent both with the terms of the 2003 board minute and, perhaps more importantly, with the way in which Mr Wilson expressed himself in his letter of early February 2005, which was not the expression of a present entitlement as of right either to be transferred a 2.5% shareholding or paid its value. Nor am I satisfied that what was said by the defendant was intended to have been, or was reasonably capable as being understood as, a legally binding promise, as opposed to a statement binding in honour only.

[94]In any event, the claimant has not explained what, if any, legal effect could be ascribed to such an assurance, if given. As Mr Cumming submitted, the defendant could not have constituted himself a trustee of shares which he did not in fact own. There is no pleaded claim to the effect that what happened amounted to some variation of the Wilson Agreement under which the defendant agreed to accept personal responsibility for the performance of the obligation imposed on Manage by clause 4 of that agreement. There is no pleaded claim for misrepresentation or the like. It is difficult to see how the claimant could seek to rely on the assurance as giving rise to some form of estoppel such as could allow the claimant to assert a cause of action against the defendant personally which otherwise did not exist.

[95]Furthermore, even allowing a generous interpretation to what is within the definition of the “claim” under the assignment agreement, it is difficult to see how this could extend to a claim made on such a basis.

Is any claim statute-barred under the Limitation Act 1980

[96]Mr Cumming submitted that even if the claimant was able to advance a valid claim by assignment against the defendant, any such claim would on any view have been statute-barred by 11 October 2012, when the instant proceedings were commenced. He submits that the cause of action in relation to the balance of the £87,500 must have accrued by mid 2003 at the latest, being one year after Manage commenced trading, and the cause of action in relation to the shares must have accrued by mid to late 2002 at the latest, being 3 months after that date. Even if it could be said that the cause of action in relation to the shares did not accrue until the time when Mr Wilson requested but was refused his shares, on the evidence that must have happened by mid 2003, when the Manage minutes record that Manage was not prepared to allot any shares to him, or by early to mid 2005 at the very latest, by which time Mr Wilson was requesting the defendant to honour his obligations in relation to the shares but was being met with a refusal. On any view the relevant limitation period, being 6 years, would have expired well before the date of commencement of these proceedings.

[97]Indeed in cross-examination of the claimant he accepted that he had researched the question of limitation prior to first approaching the defendant, and was aware that unless he could identify an argument to the contrary any claims under the Wilson Agreement would be time-barred.

[98]The only argument advanced by the claimant, in paragraphs 33(b) and 37 of his Further Information, is that s.32 Limitation Act 1980 applies because, as I read these paragraphs, the defendant was guilty of fraud or fraudulent misrepresentation in representing that he intended to transfer shares to or sell shares for Mr Wilson. Section 32 does, it is true, provide that where an action is based on fraud the limitation period does not begin to run until the claimant has discovered the fraud or could with reasonable diligence have done so. However, I am satisfied that this section cannot be relied upon by the claimant here because:(a) I have already found that the defendant was not guilty of any fraud or fraudulent misrepresentation;

(b) in any event, by early to mid 2005 at the latest Mr Wilson was well aware of the true position, and thus even if s.32 could have been relied upon to postpone the beginning of the period of limitation, it would still have expired by the time this action was commenced.

Were the claims under the Wilson Agreement satisfied by performance and/or compromise?

[99]Given the conclusions I have reached above, to the effect that the defendant has no personal liability to Mr Wilson or the claimant under the Wilson Agreement, or indeed otherwise, this point does not strictly arise. However because the point has been fully investigated and argued it is right that I should deal with it.

[100]I am satisfied that Mr Wilson is correct and that the bank statements do show that payments totalling £51,406.20 were paid to him under clause 1 of the Wilson Agreement. Although it is extremely unsatisfactory that Mr Wilson made no determined effort to obtain these statements until arriving in London in readiness to give evidence at trial, nonetheless I am satisfied that they are genuine records and that there is no other sensible explanation for these payments. I appreciate that the amount paid is not mathematically consistent with £87,500 divided by 12, but it seems to me to be inherently unlikely that they could relate to anything else. Indeed, the fact that Mr Wilson produced them, even though they show his receiving an amount substantially greater than he had previously claimed, tends to add credence to his account in this respect.

[101]It is also worth noting that the Wilson Agreement itself envisaged that payments would be made to Mr Wilson “or his nominated company”, so that there is nothing surprising in payments being made not to Mr Wilson personally. Moreover, although Mrs Neil’s evidence initially was that she recalled that the payments to Mr Wilson had been made in cash, whereas the evidence of the bank statements and the further evidence from Barclays now establishes that they must have been made by cheque, when she was shown the bank statements and asked whether it was possible that the payments had been made to this company by cheque she accepted that it was possible. It is of course also possible, although perhaps less likely, that Mr Wilson was paid in cash and banked that cash into his personal account and then, for some reason, wrote a cheque to the company on his personal account.

[102]I should say however, insofar as relevant, that there is no evidential or other basis for the claimant’s submission that they were made by the defendant personally. Most significantly, it was never asserted by Mr Wilson, whether in his witness statement or in cross-examination or re-examination, that these payments had been made by the defendant personally, as opposed to by Manage. To the contrary the clear tenor of his evidence was that it was Manage who was making these payments. I accept Mrs Neil’s account that although neither she nor her husband were shown the Wilson Agreement at the time, and were unaware of the agreement in relation to the shares, they were aware and prepared to go along with the agreement in relation to the £87,500, and accepted therefore an obligation on the part of Manage to make those payments to Mr Wilson. That, of course, is confirmed by the board meeting minutes to which I have referred.

[103]I do not however find myself able to accept Mrs Neil’s evidence as to what was paid. There are a number of reasons for this:(a) Mrs Neil was almost entirely reliant on the evidence of the accounts and, more than that, her own written additions to those management accounts. Although she attempted to explain away the difficulties with those documents, the fact remains that in the revised version of the September 2012 accounts the amount apparently allocated to Mr Wilson was completely removed, and there is no clarity as to where, if at all, it was re-allocated in that financial period. One can, as Mrs Neil did, surmise, but she can do no more than that. There is no evidence as to how she ascribed the £32,538.19 as being the amount paid to Mr Wilson from the total of £106,567 in the subsequent financial period, and I found unconvincing her explanation that this would have been a contemporaneous addition, written during a board meeting or similar, when this was discussed.

(b) Her evidence as to the circumstances in which it was agreed that the further £32,538.19 was to be, and was, paid to Mr Wilson seems to me to be unlikely. Whilst I accept that she was not challenged on this aspect of her evidence, I simply cannot accept as credible, unsupported as it is by contemporaneous evidence by way of board meeting minute, that in autumn 2002, at a time when according to Mr and Mrs Neil they were extremely unhappy with Mr Wilson and believed they had substantial claims against him, they would have agreed to pay this very specific sum without there being some record of the agreement or its basis.

(c) Her evidence was that, at least in the early period, most if not all of the payments were made in cash. There was no clear explanation before me as to what records had originally existed and what had happened to them. I appreciate that on her evidence the matter had been resolved in 2003, so that there would have been no obligation to keep records indefinitely, but that is not in itself a complete answer, particularly where on her evidence the practice was to retain documents for 10 years. Further, since independent accountants were involved at the time in revising these accounts and, presumably, producing audited accounts, there is no evidence that enquiry was made of them.

[104]The end result, therefore, is that I am satisfied that Mr Wilson would have been entitled to the balance of £87,500 less £51,406.20 paid, namely £36,093.80.

[105]Although there was also assigned the profit share claim under clause 5 of the Wilson Agreement, given that Mr Wilson agreed that no relevant business contacts were ever agreed in writing at the time the Wilson Agreement was signed, or thereafter, given that Mr Wilson never suggested that he had ever even advanced such a claim, and given that it has not been the subject of any pleaded case or investigation at trial, I would not have allowed any claim under this heading to have succeeded had I otherwise found for the claimant against the defendant.

[106]I am not satisfied on the balance of probabilities that Mr Wilson’s claim for the balance of the £87,500 was compromised. That is because:(1) So far as the alleged agreed set offs are concerned, there is no evidence at all to support them, other than the minutes of August 2002, which refers to no more than some “understanding” by Mr Neil, and also by one unexplained entry in a document produced sometime in 2012. No details have been provided of the amounts or the justification.

(2) So far as the alleged final compromise is concerned, that is because whilst I am satisfied on the balance of probabilities that the account in Manage’s minutes of August 2003 is accurate, there is no supporting evidence to the effect that this figure was paid. If it had, I am satisfied that it would have been referred to in a subsequent board meeting minute as having finally resolved that outstanding item of business. I consider the most likely explanation to be that since for whatever reason Mr Wilson did not pursue it at that time the matter was effectively shelved.

[107]Although the defendant is entitled to observe that there is no reference to any outstanding amounts being due in Mr Wilson’s 2005 letter, it seems to me that this is just as, if not more, consistent with Mr Wilson’s view at the time being that any such claim would have to be asserted against Manage, and that he knew full well that there was no way that Mr and Mrs Neil would agree to pay anything more and no prospect of persuading the defendant to do so personally. As he said in cross-examination, “I had been shot down numerous times with the money”.

[108]Finally, even had I been satisfied that any claim in relation to the money claims arising under the Wilson Agreement had been compromised, I see no basis for contending that this extended to the shares claim. The minutes of August 2013 do not support such a contention, and there is no other evidential basis for such a claim.

Conclusions

[109]However notwithstanding my conclusions in relation to the claims which Mr Wilson might have been able to assert against Manage under the Wilson Agreement, prior to their becoming statute-barred by limitation, there is no basis whatsoever in my judgment for the defendant having any liability to the claimant on the basis contended for or on any basis. It follows in my judgment that:(1) The claims made by the claimant against the defendant under the Wilson Agreement and under the assignment, being those claims pleaded in paragraphs 5 and 6 of the prayer to the Amended Particulars of Claim, must be dismissed.

(2) The defendant is entitled to declarations in the terms pleaded in paragraphs 1 - 3 of the prayer to the Counterclaim. THE HARASSMENT CLAIM The Law

THE HARASSMENT CLAIM

[110]Section 1 of the 1997 Act contains a general prohibition against a person pursuing a course of conduct which amounts to harassment and which that person knows or ought to know amounts to harassment. A course of conduct which amounts to harassment is a criminal offence under section 2 and also gives rise to civil liability under section 3. It follows, as has been said, that the course of conduct must be grave before the criminal offence or tort of harassment is proved, since the only difference between the criminal offence and the tort is the burden of proof. Things have got to be fairly severe before the law, civil or criminal, will intervene.

[111]In Dowson v Chief Constable of Northumbria

[2010] EWHC 2612

Simon J set out the following helpful summary:

“142. I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed. (1) There must be conduct which occurs on at least two occasions, (2) which is targeted at the claimant, (3) which is calculated in an objective sense to cause alarm or distress, and (4) which is objectively judged to be oppressive and unacceptable. (5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs. (6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.” (1) There must be conduct which occurs on at least two occasions, (2) which is targeted at the claimant, (3) which is calculated in an objective sense to cause alarm or distress, and (4) which is objectively judged to be oppressive and unacceptable. (5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs. (6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”

[112]It is also helpful to refer to the decision of the Court of Appeal Criminal Division in R v. Smith

[2012] EWCA Crim 2566

where Toulson LJ (as he then was), having reviewed the genesis of the legislation and having referred to some of the authorities on what is meant by harassment said this:

“24. In construing s1 of the 1997, Act it is right to have regard to the type of mischief at which it was aimed. It is also right to have regard to what the ordinary person would understand by harassment. It does not follow that because references to harassing a person include alarming a person or causing a person distress (s7(2)), any course of conduct which causes alarm or distress therefore amounts to harassment (Thomas v News Group Newspapers [2001] EWCA Civ 1233 at [29]). So to reason would be illogical and would produce perverse results. A person who habitually drives too fast in a built up area may cause alarm to other road users, but conduct of that sort was not what Parliament was invited to consider and would not fall within the ordinary understanding of what is meant by harassment. In Curtis [2010] EWCA Crim 123 the court referred to the definition of the word “harass” in the Concise Oxford Dictionary, 10th edition, as meaning to “torment by subjecting to constant interference or intimidation.”

Stalking is the prime example of such behaviour, but not the only possible form. It may occur, for example, between neighbours or in the workplace (Majrowski v Guy’s and St Thomas’s NHS Trust

[2007] 1 AC 224

at [18]). Essentially it involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress (Thomas v News Group Newspapers at [30]).”

[113]Even if the conduct crosses that line, a defendant may still escape liability if he can show (and the burden is on him) that in the particular circumstances the pursuit of the course of conduct was reasonable.

[114]It is clear that as a matter of law it is possible for litigation to constitute harassment. In Allen v Southwark London Borough Council

[2008] EWCA Civ 1478

the Court of Appeal held that it was arguable that a number of wrongly issued possession proceedings could amount to harassment. In so holding they referred, with no suggestion of disapproval and indeed with seeming approval, to a case called Baron v CPS (unreported, 13 June 2000), in which that question arose, and in which Morrison J said:

“Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel harassed as a result of the lawful conduct of forcefully conducted litigation. On the other hand, if proceedings are being used for an ulterior purpose, namely not to air legitimate grievances but to cause distress to those involved in the process, then the line may be crossed and the acts may become unlawful under the Protection from Harassment Act 1997.”

This is relevant because some of the conduct relied upon by the claimant relates to the conduct of the previous harassment action.

[115]Section 7(3A) provides that a person’s conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another -(a) to be conduct on that occasion of the other; and

(b) to be conduct in relation to which the other’s knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. This is relevant because some of the conduct relied upon by the claimant is conduct by others, namely Mr Calder, Mr Thomson and Davenport Lyons. The former two were employees of Manage and not the defendant, and Davenport Lyons were his agents, as opposed to his employees, so vicarious liability does not arise, but nonetheless the claimant can rely on conduct by Mr Calder, Mr Thomson and Davenport Lyons if it is shown that it was aided, abetted, counselled or procured by the defendant, and his actual or imputed knowledge and purpose are to be judged at the time he aided, abetted, counselled or procured that conduct.

[116]Finally, during the course of the trial the Court of Appeal gave judgment in the case of Crawford v Jenkins

[2014] EWCA Civ 1035

. In that case the question arose as to whether or not a claim for harassment under the 1997 Act is barred by immunity from suit in relation to statements, including initial complaints made to the police, as regards a matter which might lead to a prosecution, and even where in fact no such prosecution ever materialised. The principal issue which arose in that case was whether that principle, referred to as the witness immunity rule, applied to claims for malicious prosecution and associated torts, and Sir Timothy Lloyd, in a judgment with which the other members agreed, held that it did. He then turned to consider whether that principle also applied to harassment claims, and held that it did as well. This is relevant because some of the conduct relied upon by the claimant is conduct, both by the defendant himself and by Davenport Lyons, in relation to the making of complaints to the police.

The claimant’s case

[117]I approach my analysis of the harassment claim by reference to the 15 pleaded particulars of conduct said to amount to harassment contained in paragraph 4 of the Particulars of Claim. There is some degree of repetition, and some of the alleged conduct on analysis amounts to particulars of the effect of the alleged conduct on the claimant rather than separate allegations of conduct, but nonetheless it is both appropriate and convenient to assess the claimant’s case by reference to his pleaded case. I recognise of course that I must consider the totality of the complaints as well as the individual particulars, but it is convenient to begin by dealing with the individual particulars. Particulars(1) &

(2) – threats in relation to Mr Norris and his involvement of the Home Office and SOCA

[118]For the reasons I have already given, I am not satisfied that anything more was said than that Mr Calder told Mr Haynes that the defendant had sought advice from Mr Norris about involving the police, and that the defendant’s view was that if the actions of the claimant and Mr Haynes amounted to misconduct they could both be facing a prison sentence, and that Mr Thomson told the claimant that Mr Norris had become aware of what was happening.

[119]In particular, I am not satisfied that any reference was ever made to SOCA, either by Mr Norris himself or by Mr Thomson or Mr Calder. Although it was suggested by Mr Singh that Mr Thomson had admitted making reference to SOCA in evidence at the previous trial, reference to the transcript shows clearly that he made no such reference. Furthermore, although the claimant cross-examined Mr Thomson on the basis that he had accepted when giving evidence at the previous trial that he remembered having being told that Mr Norris had called the Home Office with the intention of having him arrested, closer reference to the transcript shows that in fact all that Mr Thomson had said was that he remembered that Mr Norris had spoken to somebody, but not that he had spoken to someone at the Home Office or that his intention was to have the claimant arrested. As to Mr Haynes’ evidence as to his conversation with Mr Calder, whilst I have not heard from Mr Calder I am not satisfied, for reasons I gave when referring to my assessment of Mr Haynes, that he is a reliable witness on this point, having regard to the changes in his evidence. As to Mr Singh’s evidence on this point, I am not satisfied that he is a reliable witness on this point either. Nor do I accept Mr Papadopolous’ evidence in this regard.

[120]Are the statements which were made capable of forming part of a course of conduct amounting to harassment? As the authorities demonstrate, it is important to judge the conduct in its proper context. They followed on from the claimant’s three visits to the defendant’s office. I am satisfied that the defendant did find these visits intimidating and, insofar as I need to so find, that they were intended by the claimant to have this effect. That conclusion is not, in my judgment, inconsistent with the findings of HHJ Seymour QC in the previous action, which was directed towards whether or not the claimant’s conduct amounted to harassment. I am satisfied that the claimant was fully aware of how to behave in a way which would intimidate someone such as the defendant, but which did not overstep the mark such as to constitute harassment or other criminal or civil misconduct. I am satisfied, particularly from the tenor of the contemporaneous emails passing between himself and Mr Wilson, that the claimant was proceeding on the basis that he was involved in a tactical game, akin to a game of chess, where by exerting increasing pressure on the defendant he would achieve his ultimate objective.

[121]In those circumstances it seems to me that not only was Mr Norris perfectly entitled to give the defendant the advice which he did, but that the defendant was also perfectly entitled to tell Mr Calder and Mr Thomson that Mr Norris had become involved. He was also perfectly entitled to tell Mr Calder his view as to what might happen to the claimant if he misconducted himself. Thus whilst, for the purposes of s.7(3A), I am satisfied that the defendant should be taken as being responsible for those statements, which I am satisfied he intended they should communicate to the claimant, I am not satisfied that they amounted to harassment. The defendant was perfectly entitled to respond to the claimant’s opening steps in his campaign to recover the alleged debt by the means he employed to make plain to the claimant that he was not going to be cowed, that the company whose offices the claimant had visited had an influential chairman, and that if the claimant overstepped the line he might find himself in breach of the criminal law with potentially serious consequences. In short, given the way in which the claimant had approached this matter the defendant was perfectly entitled to respond robustly.

[123]Moreover, I am not satisfied that the claimant was in fact harassed, alarmed or distressed by any of this. He made it clear that he was not prepared to back down in any way and, in his witness statement, said that he did not “appreciate being threatened by Mr Norris or Mr Hall”. In his previous witness statement he had said that he was not “fazed” by this, and in cross-examination he said that he was “undeterred”. In my judgment the claimant was naturally concerned that the defendant might carry through his threat, following advice from Mr Norris, to involve the police if the claimant carried on with his campaign, but it seems to me that he viewed this as no more than an offensive move by the defendant in the tactical game in which he was engaged.

Particular (3) - Davenport Lyons’ letter dated 12 March 2012

[124]I should also say that, whilst I would have viewed this as more borderline, I would not have considered that the conduct complained of by the claimant would have amounted to harassment even if there had been references to Mr Norris using his contacts within the Home Office or SOCA to have the claimant arrested or imprisoned. There can be no suggestion that this was intended, or could seriously have been taken, as a threat capable of being implemented to have the claimant arrested or imprisoned other than under due process of law, and it does not seem to me that threatening to use the influence of Mr Norris to involve the executive or the police so as to procure that due process was invoked could, in all the circumstances, amount to harassment. Particular (3) - Davenport Lyons’ letter dated 12 March 2012 This letter followed on from the claimant’s visit to the defendant’s house on 29 February 2012. There is a conflict of evidence as to what happened at this visit, which insofar as it was resolved by HHJ Seymour QC in order to decide what the claimant did I should not interfere and, more generally, which is unnecessary for me to resolve in this case. However from the evidence before me I am satisfied as to the following matters:(1) The claimant was aware, as a result of what he had been told by Mr Thomson on 23 and 24 February 2012, that the claimant’s direct personal approaches to the defendant had caused the defendant to feel intimidated and anxious, that the defendant and those around him considered that it was an inappropriate way of proceedings (“an old fashioned screw”) and that the claimant should stop those approaches and deal with the matter through conventional channels, failing which the defendant would follow the advice of Mr Norris and involve the police. In turn the claimant had made Mr Thomson aware of his criminal conviction and time in prison, and had indicated that he would not stop dealing with it in the way that he had been doing. This was reported back to the claimant who, unsurprisingly, was left in the same, if not more, intimidated and anxious state.

(2) Instead of paying heed to Mr Thomson’s advice, the claimant decided to pay an unannounced visit to the defendant’s private house. Whilst I am satisfied that the claimant had already visited the property and was aware that it was in the process of refurbishment so that neither the defendant nor his family were living there, I am also satisfied that the purpose of his visit was to make the defendant aware that he had visited, and that he knew how to find the claimant at home and outside of his business address.

(3) The claimant and Mr Papadopolous gained access to the house by false pretences, in that they claimed to have been invited by the defendant to call in and inspect the house if visiting the area, and they deliberately had a good look around before making themselves known to Mr Anning as the site agent.

(4) The claimant told Mr Anning to tell the defendant that a friend of Mr Wilson had visited the house and that the defendant would know who he was. I am satisfied that this was intended to further intimidate and cause anxiety to the defendant, without conveying any explicit threat. It was part of the process of turning the screw.

[125]I do not accept Mr Anning’s evidence, which was hearsay, to the effect that the claimant and Mr Papadopolous had “forced” their way onto site, or that they conveyed an air of menace, either to the builders at the front or when speaking to Mr Anning. Instead I am satisfied that what happened was that Mr Anning reported this visit to the defendant who had – as intended – immediately realised who had visited and was, understandably, left extremely worried that this now potentially involved his wife and children as well as him. The defendant then told Mr Anning about the claimant and his criminal record and activities, and asked him to contact the police. That, unsurprisingly, was very concerning to Mr Anning, who shared the information with the contractors, thus beginning a process where they all began to magnify the impact of what had happened so as to regard the direct contact as far more sinister than they had perceived it at the time.

[126]I am satisfied that this did represent a serious escalation in the claimant’s campaign and, unsurprisingly in the circumstances, caused the defendant to decide that matters were sufficiently serious to lead him to seek legal advice from solicitors. HHJ Seymour QC said that he believed the claimant probably recognised with hindsight that the visit was both unwise and likely to be misconstrued. In my judgment the claimant fully appreciated that the visit was inappropriate, but that he fully intended the visit to be construed precisely as it was, namely as a significant turn of the screw as against the defendant.

[127]I am also satisfied that the claimant, in telling Mr Thomson about the involvement of Mr Aggarwal, was intent on making it clear to the defendant that he was not going to go away, and that instead he was intent on exerting yet more pressure on the defendant.

[128]In those circumstances it seems to me that the defendant was fully entitled to instruct solicitors, and fully entitled to instruct them to write a forceful and detailed “cease and desist” letter in the terms that they did.

[129]It must be and is accepted by the defendant, in the light of the factual and other findings made by HHJ Seymour QC, that the letter did contain a number of factual inaccuracies and omissions. However, it does not seem to me that these inaccuracies and omissions, taken individually or collectively, are such that the content of the letter can be said to have overstepped the line between the robust expression of the client’s case and harassment. Any recipient of such a letter will doubtless find it an unpleasant surprise, but equally it is important that a citizen with a grievance against another is entitled to communicate, through solicitors or otherwise, his grievance against that other, and it will not infrequently occur that there will be errors and omissions in the account put forward, some serious and some not. In the absence of something more, some evidence for example that the sender had no honest belief at all in the contents, or that the communication was motivated by some ulterior malicious motive, I am unable to accept that it could amount to harassment under the 1997 Act.

[130]Moreover, I am also unable to accept that claimant was in fact harassed, alarmed or distressed by any of this. I accept that he would, naturally, be concerned from a tactical perspective about the defendant’s decision to employ the services of lawyers and the threat of civil proceedings for harassment seeking an injunction and damages, but I do not consider that there was anything more than this. Thus in a contemporaneous email sent to Mr Wilson he described the accusation of harassment as “bizarre” and showed that the defendant was “desperate”, and attached a copy of the letter “for sheer entertainment value”. In cross-examination he accepted that he might have described it as “amateurish”. In his witness statement Mr Haynes claimed that the claimant told him that he considered the letter to be a “pack of lies” and “intimidating”. Mr Haynes did not refer to the claimant being intimidated in his previous witness statement in the previous action. When cross-examined he said that the correct word was “harassed”. I place no weight on that evidence.

Particular (4a) – harassment of Mr Papadopolous by Davenport Lyons

[131]Whilst it may have been better for the text messages to have been sent after, say, 8am that morning, I do not otherwise see any conceivable basis for criticism of these communications. Davenport Lyons were making urgent attempts to ensure that the claimant was notified of the injunction application hearing, the only contact detail they had was the mobile number, and they were being met by someone who refused to identify himself but claimed he would pass on the message, yet there was no response from the defendant to say that he had received it. I do not consider that the fact that these two texts were sent before 8am could mean that they crossed the line into harassment.

[132]Furthermore, in the absence of any reason to believe that this conduct was instigated or approved by the defendant, it seems to me that he cannot be liable for it in any event.

[133]Moreover, under cross-examination it was clear that although Mr Papadopolous may have been annoyed by these texts their content did not alarm him, and his only momentary alarm was due to his entirely understandable concern, on being awakened by an early morning text message, that it might signify some urgent family matter. I do not regard that as sufficiently serious to amount to being harassed. Particular (4b) – obtaining the without notice injunction by withholding material evidence and relying on untrue evidence

[134]Again the defendant must and does accept the findings of HHJ Seymour QC in this regard. Before me the defendant has been at pains to emphasise that these were not deliberate falsities on his part, and that the errors arose during drafting by Davenport Lyons which he, as he accepts, regrettably did not pick up and correct. It is true that the first two errors were corrected in the defendant’s second witness statement, and I am also satisfied that the defendant had arranged for the employees concerned to provide emails setting out their recollection to Davenport Lyons before the defendant made his first witness statement, and that he did not deliberately intend to deceive the court in relation to any of these statements.

[135]It seems to me that this is a case where the distinction drawn by Morrison J. in Baron v CPS above is apposite. It is clearly unfortunate, to say the least, that a without notice injunction was obtained in circumstances where the defendant did not comply with his duty of full and frank disclosure. I consider that the defendant was, to some extent, guilty of “gilding the lily” in his evidence. However I am not satisfied that this is a case where the defendant applied for an injunction relying substantially on evidence in which he had no honest belief, or that the application was motivated by some ulterior malicious motive. Accordingly, I am unable to accept that it crosses the line such as to amount to harassment.

[136]In his witness statement the claimant claims to have been “extremely distressed” by the failure to provide a full or accurate account in the evidence submitted by the defendant. I am afraid that I simply do not accept that. In my judgment he would naturally have been annoyed and aggrieved that there were a number of errors in the defendant’s evidence, but I do not accept that it went any further than that. Indeed, in the tactical game in which the claimant was engaged, he was able in due course to take full advantage of those errors.

Particular (5) – Davenport Lyons’ letter of complaint to the police

[137]In my judgment the witness immunity rule, as applied by the Court of Appeal to harassment claims, applies to this communication. It clearly amounts to a complaint made to the police by Davenport Lyons on behalf of the defendant and is therefore covered by the rule. That conclusion is in itself fatal to this allegation.

[138]Apart from that point, it does not seem to me in any event that there is anything remotely objectionable about the terms of this letter in itself. Indeed it does not appear that the claimant’s complaint is founded on anything more than the fact that by enclosing the evidence relied on in support of the injunction application the defendant was putting forward a misleading and untrue account to the police, in the same way as he did to the court. I have however already concluded that although the defendant’s conduct in this regard was, as he accepts, to be regretted, it does not amount to harassment.

[139]Finally, it is clear from the claimant’s subsequent letter to the police dated 8 April 2012 that he had been provided with a copy of the letter to the police, and that he was not remotely threatened or deterred by this decision to involve the police. In cross-examination the claimant accepted that there was nothing threatening or alarming in his contact with the police at this point.

Particular (6) – the defendant’s complaint to the police

[140]This is also covered by the witness immunity rule.

[141]Moreover there is no suggestion from the claimant nor any evidence, whether in the CRIS report or otherwise, to indicate that the defendant’s further contact with the police contained anything objectionable in itself, or that the claimant was in any way harassed by it.

Particular (7) – the return date of the injunction hearing, employing private detectives

[142]There has been no clear explanation by the claimant as to what his complaint is in this regard. There is no indication that the defendant or his representatives did or said anything on this occasion which is relied upon as an independent ground of complaint.

[143]In relation to employing private detectives, I cannot see how it could be said that this in itself could amount to harassment. The defendant’s position was that private detectives were instructed purely to effect service of process on the claimant, and there is no evidential basis for disbelieving that assertion. There is no evidence that the claimant was even aware that this was the case until he was made aware of it at this hearing, and no evidence that he was in any way harassed by them.

Particulars (8) & (9) – harassment of Ms Higgison by Davenport Lyons

[144]Ms Higgison has not given evidence. There is no basis for my not accepting what was said by Davenport Lyons in their contemporaneous letter of 25 April 2012, which has not been challenged by the claimant, that both calls were made in the context of seeking to gather evidence in relation to the first action, and that once they were put on notice of Ms Higgison’s complaint they desisted.

[145]In such circumstances there is no basis for considering that this conduct could amount to harassment. Particulars (10) & (11) – further complaints to the police, resulting in the claimant’s arrest, interview and release on bail subject to conditions

[146]This relates to the further attendance by the defendant on 3 May 2012, confirming to DI Cox that he wished to proceed with the complaint. There is no basis for regarding this as conduct amounting to harassment, even if it was something on which the claimant was entitled to rely as a matter of law.

[147]Whilst I am prepared to accept that the claimant, notwithstanding his previous encounter with the criminal justice system, would at least to some extent have been alarmed and distressed at his arrest, interview and release on conditional bail, it is clearly the natural consequence of the police performing their role to investigate complaints of criminal conduct. Thus it cannot in my judgment be a consequence of anything which can in law be relied upon as amounting to harassment. Particular (12) – deploying the fact of the claimant’s arrest and release on bail against him at the trial of the first action

[148]It does not seem to me to be even arguable that this could amount to harassment. It was a statement of fact, made to a judge in court proceedings. It plainly had no effect on HHJ Seymour QC in any event, and I am wholly unable to accept that the claimant found this “extremely disturbing and most distressing”. Particular (13) – renewed application for injunction at the conclusion of the trial of the first action

[149]In my view, making an application to a judge for a further injunction at the end of a trial may have been a fairly hopeless application in the circumstances, but it could not possibly fall within the definition of harassment. Even if it did, based on the information provided, I accept, from the defendant’s then wife, it seems to me that it was a reasonable step to take, particularly in circumstances where it was presumably considered to have been appropriate by the defendant’s then counsel. Particulars (14) & (15) – the defendant’s complaints to the police resulting in harassment warning being issued against

The claimant

[150]There is no indication or evidence that the claimant is relying upon anything further or new here. This is simply his complaint as to the consequences of the previous complaint, and his complaint that the police ought not to have issued a harassment notice given the failure of the civil harassment claim, although in fact he asserts that the police did not formally issue any such notice.

[151]In my judgment there is no basis for contending that this is a separate instance of conduct, if anything it is a further consequence of conduct already complained of. Even if I was wrong about that, however, in the circumstances this is not something on which the claimant is entitled to rely as a matter of law, nor is it capable of amounting to harassment.

Overall assessment

[152]I have not found any of the individual allegations to constitute harassment. Even if I was to agglomerate them all together and to consider together all of those allegations which are capable as a matter of law of amounting to harassment, I would still not be convinced that they demonstrate a course of conduct amounting to harassment so as to found civil liability.

[153]In the circumstances the claim for harassment fails, and must be dismissed.

Assessment of damages for harassment

[154]Although strictly unnecessary, I should go on to explain what if any damages I would have awarded had I found that there had been harassment.

[155]In the Particulars of Claim the claimant seeks damages, including aggravated and exemplary damages, exceeding £300,000.

[156]One specific claim made is that the claimant’s business has suffered as a result of being unable to conduct his business activities whilst defending the claim, which I take to be the original harassment claim, and due to the public attention given to his past criminal conviction in the course of the previous trial. He confirmed this in his witness statement.

[157]It is clear in my judgment that the claimant could not recover damages for the consequence of being unable to conduct his business activities whilst defending the original harassment claim. That is because even if I had otherwise found for the claimant it could not possibly be said in this case that the pursuit of the original harassment proceedings could as such amount to harassment. It is not a case where, for example, it could be said that if the defendant had not failed to comply with his duty of full and frank disclosure in the respects found by HHJ Seymour QC the injunction would not have been granted and/or the claim would have been struck out summarily as disclosing no cause of action. The reality is that the claim was lost because HHJ Seymour QC was not impressed by the defendant as a witness, and took a properly robust approach to what did and did not constitute harassment.

[158]So far as the loss due to adverse publicity is concerned, the claimant’s case is that due to reporting restrictions imposed in relation to the criminal proceedings which resulted in his conviction there was little if any publicly available information on the internet which connected him with that matter prior to the trial before HHJ Seymour QC, whereas after that the widespread publicity resulted in that information becoming publicly available on the internet which had the consequence of dissuading would be clients from using his services.

[159]As a preliminary point it seems to me that even if there was any loss here it would not be recoverable as damages for harassment, because the loss does not flow from the alleged wrongful harassment but from the fact that the court proceedings, held as they were in open court, resulted in information reaching the internet which had previously not been present. However this is not, for example, a case where information previously confidential to the victim of harassment was wrongfully posted on the internet as part of a campaign of harassment. It is a case where the information as to the claimant’s conviction was in no way confidential, indeed the reverse, but on the claimant’s case through good fortune so far as he was concerned had not resulted in widespread publicity. Since, as I have said, the claimant cannot complain that the original harassment claim itself constituted part of a course of conduct amounting to harassment, and nor can he make the same complaint in relation to the publication of the information of his conviction, he cannot claim damages flowing from that publication during the course of the original harassment claim.

[160]Even if I had been wrong about that, the claimant’s claim for financial loss would still have failed on the facts. That is because the only evidence adduced by the claimant in support of his claim is said to be loss of business suffered by a limited company Patron Services Limited (“Patron”), and that evidence is woefully inadequate to support any claim, let alone one of the substance which the claimant seeks to adduce.

[161]In his witness statement the claimant said that he formed Patron in February 2012 to recover debts. He referred to two would-be clients who he said failed to employ his services due to the adverse publicity. He attached two documents to support his case.

[162]The first was an undated letter from a Mr. Baksi, seemingly the proprietor of a restaurant in Muswell Hill, saying that he had retained Patron in 2012 to recover losses amounting to £4,700 in relation to a business dispute, but had requested it to cease pursuing the debt due to the publicity. However not only is there no witness statement from the writer of the letter, but no indication as to the substance of the debt, whether anyone else was retained to collect it instead, and if so with what result. Under cross-examination the claimant admitted that he had drafted the letter. There is no evidence as to what, if any, terms were agreed as to Patron’s remuneration. In short, there is no satisfactory or sufficient evidence to justify making any award in relation to this.

[163]The second is a letter dated 9 July 2013 from a Mr G. Calabrese of an address in Walthamstow, saying substantially the same thing, but this time in relation to a debt amounting to £575,000. It suffers from precisely the same difficulties as the previous letter. Although in examination in chief the claimant volunteered that he had recently been given the opportunity from a third party to recover part of that debt, that only it seemed to me increased the mystery in relation to what appears to be a very substantial debt.

[164]Moreover, both letters referred with evident approval to the quality of the claimant’s service, which left me confused as to why they should be so keen to distance themselves from using Patron’s services following the dismissal of the defendant’s original harassment claim, particularly in circumstances where so far as I have been made aware there would be no obvious reason for anyone to link the claimant himself with that company. In short, I am satisfied on the balance of probabilities that, even if there was some scintilla of truth in these letters, in that it is possible that the writers had intended to use Patron to recover these alleged debts, but were deterred by the publicity arising at the original trial, there is no basis for concluding that this was anything other than temporary, and that they would not have been quite happy to use the Patron’s services again had they genuinely wanted to do so.

[165]Finally, there is the objection that the normal position is that as a matter of law it would not be open to an individual to recover damages on the basis of loss of income suffered by a limited company. Whilst I accept that there are exceptions to this rule, and it might, for example, be possible for the sole proprietor of a one man company to recover loss by reference to a loss of dividend, the claimant has made no attempt to address this issue, by evidence or submissions, or otherwise to explain how in this case that would be a permissible exercise.

[166]For all of those reasons I would not have awarded any special damages for loss of business.

[167]So far as general damages are concerned, I can be brief. The claimant accepted that he had not suffered any psychiatric damage or that the alleged harassment had affected him in any other serious way. The most that could be said would have been that he had suffered the anxiety of being threatened with arrest by the police, threatened by aggressive litigation tactics, subjected to an interim injunction, arrested, interviewed, and bailed conditionally, had two colleagues subject to some minor harassment, had private detectives placed on him, and received a harassment warning. On my assessment of his character the claimant was more irritated and aggrieved than seriously alarmed and distressed by these events. The Court of Appeal in Vento v Chief Constable of West Yorkshire (No 2)

[2003] ICR 318

identified 3 bands of award. I would have concluded that this case falls somewhere at the top of the lower band and would thus, adjusted for inflation, have awarded £5,000. I would not have been satisfied that there was any basis for awarding either aggravated or exemplary damages.

[168]However, for reasons I have explained, all this is irrelevant because my primary decision is that the harassment claim must fail.

CONCLUSION

[169]It follows that the claimant’s claims fail, and must be dismissed, and that the defendant is in principle entitled to the declarations which he seeks in his counterclaim.

[170]I conclude by acknowledging my gratitude to the claimant and to Mr Cumming, who presented their respective cases with skill and courtesy. In particular, as I said at the time, I am grateful to the claimant for undertaking the difficult task of cross-examining the defendant with determination, but with moderation. I am also grateful to the defendant’s solicitors for producing a very clear and user friendly trial bundle and assisting the witnesses as and when necessary, and to the typists for sitting early and late on occasion to assist the witnesses.