Al Hamadani & Anor v Al Khafaf & Ors [2015] EWHC 38 (QB)

Case No HQ14X01415[2015] EWHC 38 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/01/2015
Before
MR JUSTICE WARBY
Between
ALI AL HAMADANIClaimantsALMAGHIR AL HAMADANIClaimantMOHAMAD AL KHAFAFDefendantsAHMED SADEK ALI-ALI (also known as “HASSANIAN”)DefendantSAMEER SABRIDefendantMOHAMAD SHAMSIDefendantBASIM ISADefendant
Philip Jones (instructed by Mackrell Turner Garrett) for ClaimantsHearing Hearing date: 13 January 2014
JudgmentMr Justice Warby:Introduction
[1]This is the trial of a claim by the claimants, (“Ali” and “Almaghir”), who are brothers and art and antique dealers, for an injunction pursuant to the Protection from Harassment Act 1997. The claim is brought against five defendants but, as will appear from what follows, the claims have settled against the first four defendants and the trial is effective only against the third defendant, Sameer Sabri (“Mr Sabri”). He does not appear and is not represented.[2]The claim arises from a dispute between the claimants and the first defendant, another antique dealer, between late 2013 and 12 March 2014. This is alleged to have involved a course of harassing conduct instigated by the first defendant which culminated on the evening of 12 March 2014 in a visit to the claimants’ home in West London by the second, third, fourth and fifth defendants where it is said that, acting on behalf of the first defendant, they threatened and intimidated both the claimants causing them stress and anxiety. Some subsequent events are also relied on. The claim seeks no damages but only an injunction to prevent future harassment.[3]Issues arise as to the evidence that I should consider, which make it necessary to start by outlining the procedural history.

An outline of the proceedings

[4]The claim form was issued on 3 April 2014, and on the same day an application was made without notice for an interim injunction against all five defendants. Ali and Almaghir each made a witness statement in support of the application, dated 3 April 2014. Exhibited to Ali’s statement was a DVD containing video recordings from security cameras of the events of the evening of 12 March. Spencer J granted the injunction. The claimants gave the usual undertaking to serve the claim form, application notice, evidence in support and order as soon as possible.[5]On the return date, 11 April 2014, the matter came before Wilkie J, supported by a 2nd witness statement of Ali dated 8 April 2014. This stated, among other things, that the documents in the matter had been personally served on Mr Sabri on 4 April 2014. Mr Sabri and the first, second, and fourth defendants were represented by Counsel at the hearing and some of the defendants including Mr Sabri put in evidence. Wilkie J continued the order until after trial or further order, directing that the order be served on each of the defendants and noting that solicitors were by then on record for each of the first, second, third and fifth defendants.[6]In May 2014 an application was made by the first and fifth defendants to discharge the injunction. Eight witness statements were relied on in support, including Mr Sabri’s earlier statement of 10 April. In response to the application the claimants filed a 3rd witness statement of Ali, a 2nd statement of Almaghir, and a statement of Salman Malik, the Duty Manager at the claimants’ apartment block. The application was dismissed by HHJ Seymour QC sitting as a Deputy High Court Judge on 20 May 2014.[7]On 25 July 2014 the matter came before Master Yoxall for a case management conference. By this time the claimants had settled their claims against the fourth defendant, who had consented to the grant of a permanent injunction. This was subsequently put in the form of an order dated 29 July 2014. At the hearing, where only the claimant and first defendant were represented, the Master gave directions for trial and other procedural directions including the following:
“1. Any of the Second, Third or Fifth Defendants who did not file an acknowledgment of service in accordance with CPR 8.3 and wishes to defend the claim must within 14 days after service upon him of this order make and serve an application for an extension of time for filing an acknowledgment of service, in default of which he shall be debarred from taking part in the trial of this claim. 2. The parties shall give consideration to resolving this dispute by means of ADR by 30 September 2014 … Consideration should also be given to resolving this dispute by offer of undertakings … 3. If any party wishes to adduce any further evidence or witness statements he must serve on every other party such further evidence or statement by 4pm on 17 October 2014… 4. The Claimants shall serve a transcript of the video recording made of events on 12 March 2014 by 4pm on 17 October 2014. … 7. The Claimants shall provide further particulars of the allegations made in paragraphs 33 and 34 of the First Claimant’s witness statement dated 3 April 2014. 8. Claimant[s] to file and serve order by 8th August 2014.”
[8]According to the evidence before me Mr Sabri had not acknowledged service. By CPR 8.4, where a defendant has not acknowledged service and the time for doing so has expired “the defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission”. Accordingly, the effect of paragraph 1 of the Master’s order was to give Mr Sabri and the other two defendants referred to, if they had not acknowledged service, a reminder and a prompt to make an appropriate application if they wished to take part in the trial.[9]In the event, the Master’s encouragement to consider resolving the dispute seems to have worked so far as the first, second and fifth defendants are concerned. By 21 August 2014 the claimants’ claims against each of those defendants had been settled, with orders for injunctions by consent being made against each of them. All that now remains for resolution, therefore, is the claim against Mr Sabri.[10]On 7 November 2014 the claimants served on Mr Sabri the 4th witness statement of Ali, dated 22 October 2014, and a transcript of the video recording of the events of 12 March 2014, with translation from the Arabic. The witness statement is intended to contain the further particulars of paragraphs 33 and 34 of Ali’s 1st statement required by paragraph 7 of the Master’s order.[11]This material was served 20 days after the date prescribed by the Master’s Order of 25 July 2014, and the claimants accordingly by application notice dated 16 December 2014 sought an extension of time for compliance with paragraphs 3, 4 and 7 of the Order until 7 November 2014, and permission to rely on the witness statement and transcript. Evidence in support was provided by a statement of Mr Atton of the claimants’ solicitors, contained within the application notice. This stated among other things that the delay in service had not prejudiced Mr Sabri as he “has not filed an acknowledgement of service in the claim and accordingly the third defendant is debarred from taking part in the trial of the claim pursuant to paragraph 1 of the order dated 25 July 2014.”

Permission to adduce evidence/relief from sanctions

[12]The claimants’ application is rightly made, but neither their application notice nor their evidence of December goes far enough. When a defendant does not attend the trial it is especially appropriate for the court to take a strict approach to ensuring compliance the applicable rules and procedures.[13]CPR 8.6(1) provides that “No written evidence may be relied on at the hearing of the claim unless(a) it has been served in accordance with rule 8.5; or(b) the court gives permission.” Rule 8.5 provides that the claimant must file any written evidence on which he intends to rely when he files his claim form, and that he must serve that evidence with the claim form; that the defendant may file evidence with his acknowledgment of service and if he does must serve it; and that the claimant may file evidence in response to any filed by the defendant and if he does must serve it. According to the evidence initially put before me about the procedural history only the 1st statements of each claimant were served with the claim form. The process thereafter which is envisaged by CPR 8.5 did not take place. The claimants’ further evidence was served under different circumstances, as described above. Strictly, therefore, permission is therefore additionally required for reliance by the claimants on the 2nd and 3rd statements of Ali, the 2nd statement of Almaghir, and the statement of Mr Malik.[14]Secondly, the claimants require relief from sanctions in respect of all their evidence, save the claimants’ 1st statements. The terms of CPR 8.6(1) which I have quoted above are the Part 8 counterpart of CPR 32.10, which applies in Part 7 claims. The differences are immaterial. CPR 32.10 was considered by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 to involve an “automatic sanction” requiring an application for relief under CPR 3.9: see paras [5] and [52]. I can see no reason why CPR 8.6(1) should be treated any differently.[15]CPR 3.9 is familiar. It provides that on an application for relief from any sanction imposed for a failure to comply with any rule or court order the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including what the Court of Appeal in Denton v TH White called “factors (a) and (b)” namely “the need(a) for litigation to be conducted efficiently and at proportionate cost; and(b) to enforce compliance with rules, practice directions and orders.” The approach to be taken was clarified in Denton, and summarised in paragraph [24] of the joint judgment of Lord Dyson MR and Vos LJ: “The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’ Evidence is required: CPR 3.9(2).[16]There is an additional point. Whilst Mr Atton’s statement asserts that the third defendant is debarred from taking part in the trial for failure to acknowledge service it does not attest to the service of the directions order of Master Yoxall, or failure to apply for an extension of time to acknowledge service, each of which was a condition precedent to the prohibition in paragraph 1 of the order.[17]These issues having been raised by me, the claimants by Counsel expanded the scope of their application to cover the earlier evidence, seeking relief from sanctions in respect of all the evidence since the 1st statements of both claimants. The claimants also sought to adduce further evidence from Mr Atton, who gave oral evidence. He is a partner in the claimants’ solicitors and has had the conduct of the case throughout. The claimants’ evidence, as supplemented in this way, was to this effect. i) By the time of the hearing before Wilkie J, Freemans solicitors had come on the record as acting for all the defendants except the fourth. Ali’s 2nd and 3rd statements and Almaghir’s 2nd statement had all been served on Freemans prior to the hearing before HHJ Seymour QC. By the time of the CMC Mr Sabri had therefore received, via his solicitors, all the evidence the claimants had by then produced, as indeed the Master’s order evidently assumed. ii) By email of 30 July 2014 the order of Master Yoxall was served on Freemans (who had not come off the record) and the order was served on Mr Sabri himself under cover of a letter of 15 August 2014, sent to the address given by him in his statement of 10 April 2014. Mr Sabri made no application thereafter to extend time for acknowledgement of service. iii) The reason why the claimants failed to comply with paragraphs 3, 4 and 7 of the directions by 17 October 2014 was that until the middle of October they were still in discussions with the third defendant with a view to settlement and avoiding a trial. The statement was not prepared until 22 October and the transcription and translation were obtained on 6 November. Both were served the day after the latter was obtained.[18]Against that evidential background I have granted the claimants relief from sanctions in respect of all the evidential material I have mentioned and permitted them to rely on all the statements and the transcript and translation of the video recording. So far as the evidence served in advance of the return date hearing is concerned, it is rather artificial to refer to a ‘failure to comply’; at any rate, the claimants’ conduct was not serious or significant; the reason for the evidence being served in this way was entirely acceptable; and there was no impact on efficiency, proportionate cost, or the matters listed in factor (b). Similarly as regards the evidence served in answer to the first and fifth defendants’ application to set aside. The ‘failure to comply’ at that stage was purely technical and of no consequence.[19]The position is different when it comes to late service of the 4th statement and transcript/translation. Failure to comply with a deadline for service of witness statements is a serious and significant breach. Where the parties wish, as experience shows quite commonly they do, to avoid incurring litigation costs whilst engaging in settlement discussions the proper course is to seek an extension of time from the court, before the deadline expires. In that way the court retains control over the process and can guard against the risk that one or both of the parties may lose sight of the need to exchange or serve statements in good time before the trial or other hearing. That is what should have happened here. Nonetheless, in this case the delay was slightly less than three weeks and, more importantly, the evidence was served more than two months before the trial. Mr Sabri was by that stage debarred from taking part in the trial by virtue of paragraph 1 of the Master’s Order, but could in principle have made an application for relief from that sanction. Service on 7 November 2014 gave him an opportunity to assess the totality of the evidence well in advance of trial and to make such an application if so advised. The orderly and proportionate progress of the litigation was not threatened. In my judgment it was just to relieve the claimants from sanctions.[20]Having allowed the claimants to rely on all the written evidence they have served Mr Jones then called each of the claimants to confirm on oath that the contents of their statements were true. They answered some short supplemental questions from Counsel and from me.

The facts

[21]The claimants are professional antique dealers dealing in high value antiques and art. They are of Iraqi origin, as are all the defendants. Having successfully run their antiques business from Dubai since about 2002 the claimants decided in 2012 to move to the UK with their families and to set up here as well. The established themselves in an apartment building at Prince of Wales Terrace, London W8, together with a third brother and his family. Part of their premises is a ground floor flat used for both residential and business purposes. The children of the families use the flat to study, play and watch television and sometimes to sleep.[22]Whilst living in Dubai the claimants had dealings with the first defendant, whom they call “Khafaf”, who is based in the UK. He would provide the claimants with services on an exclusive basis, searching locating and presenting to them antiques to buy. This would often involve paying Khafaf large sums up front to enable him to buy items outright or pay a substantial deposit. When items were presented to the claimants they could accept them or reject them. In the latter case Khafaf would obtain a refund of the money he had paid.[23]Once the claimants moved to the UK Khafaf became closer to them, providing his antique services but also helping generally. From early 2013 however the relationship became difficult. It is unnecessary for the purposes of this judgment to enter into great detail about these background matters. Suffice to say that according to the claimants’ evidence, between early 2013 and June 2013 they made a series of payments to Khafaf, his brother, and his uncle in respect of items sourced or to be sourced by them for the claimants, but the items were all rejected by the claimants as fake. The claimants secured repayment of $30,000 paid to Khafaf’s brother but not the other sums they had advanced. As a result of these dealings, and an advance they made to Khafaf to enable him to pay a debt, the claimants say, Khafaf owed the claimants $55,000 and £1,200 and his uncle owed them £10,000 which Khafaf had personally guaranteed.[24]In paragraphs 33 and 34 of his 1st statement Ali says “Since being repaid $30,000 we have been subject to threats by Khafaf regarding their claims for the aforementioned sums. Particularly, since 14 December 2013, Shamsi [the fourth defendant] has visited us regularly at our business premises (which is also our home) and has repeatedly threatened to us that this matter will get bigger if we keep on demanding our money back from Khafaf and [his uncle].” Ali’s 4th statement expands on this, saying that the $30,000 was repaid in or about the beginning of December 2013; that Shamsi is a good friend of Khafaf and was, prior to 12 March 2014, a good friend of Ali and his family who did business with the claimants on occasions; for that reason he was in regular contact with them during the period of the dispute. Ali’s statement then reiterates that on such occasions Shamsi warned the claimants that the matter was “going to get bigger”.[25]According to Ali’s 1st statement Shamsi attended the claimants’ premises on 10 and 11 March 2014 and warned them again that the matter was going to get bigger. They had not taken any action themselves at that time, to recover the money due. During the 11 March visit Shamsi showed an interest in one of the claimants’ rugs and asked them to put it aside for him saying he would be back the next day. He did return, on the evening of 12 March 2014, at around 10.30pm, but not alone. The events that followed represent the core of the claimants’ case.[26]Shamsi asked Ali to let him in, saying he was outside alone. Ali thought he had come about the rug discussed the day before and therefore came down and let Shamsi in. However, as he did so he was surprised to see another three individuals with him. These were Mr Sabri, the second defendant and the fifth defendant. Ali knew the second defendant but not Mr Sabri or the fifth defendant (he learned their names later). Not wanting to create a scene in what is apparently a prestigious apartment block Ali let all the men in.[27]Ali’s statement describes what happened next as follows:
“When they came into my premises Basim [the fifth defendant] told me in an aggressive manner that Khafaf had asked him to speak to me on his behalf for the return of his goods which had remained at the premises as a result of the $55,000 no being repaid. I said that the goods would be returned as long as he returns to me the $55,000 I had paid him. Basim responded aggressively by saying that ‘I will not get out of here unless I collect the items’. Basim then said, in an attempt I believe to intimidate me, that he will call the police.”
[28]Ali says that on hearing this he left the room to seek help from Mr Salman Malik and they called the police, who came quickly. There were then conversations with the police in the course of which Basim accused Ali of being a liar. When that was reported to them, the police said they would not allow the situation to continue. Ali’s statement says “The police asked whose flat it was and by that time my brother Almaghir (Mugheer) and my younger brother Yasin had entered the room. Mugheer said that the flat is mine and my brothers. On hearing this, the police told the 4 to leave the premises and took them outside.”[29]Almaghir’s evidence is that he knew Shamsi had called at the flat and took the children, who had been in the living room, upstairs. The implication is that he knew business was to be talked about and wanted the children out of the way. He had no concerns initially. The first that he knew of what was actually happening was when Ali came up to the 4th floor to tell him what was going on and that he (Ali) was being threatened. Shamsi followed Ali upstairs and they argued with one another. Ali was protesting that “Shamsi had brought these threatening men to our home.” In his oral evidence Almaghir told me that when he went downstairs “they were shouting and threatening people”.[30]There were then exchanges with the police, who reported to the claimants what the four men were saying to them. They were complaining that the claimants had not released goods, having agreed to share shipment with the claimants, which was disputed by Ali. Ali then showed the police the video recording of what had taken and they agreed that the men had been heavy handed. Ali and his brother explained to the officer their side of the story “about the money owed to us by Khafaf and [his uncle] and that we had been told that unless we stopped asking for the money to be returned that harm would come to us”. The police went back outside, then returned with pictures of items the claimants had allegedly brought back from Dubai. Ali denied this and invited the police to check the premises for the items, which they did and confirmed the photographed items were not there. The police then said there was someone who could recognise the items, and Khafaf appeared. Ali refused him entry, upon which Khafaf said something which the police reported as being “We will deport you out from the country”.[31]Ali’s 1st statement, with which Almaghir expressly confirms his agreement, deals with the impact of these events on the claimants. Ali says that he believes that he and Almaghir have been harassed by Khafaf “which has caused us both stress and anxiety”. He goes on:
“Particularly, Khafaf through others has made constant verbal threats against us and on the evening of 12 March 2014 at around 10.30pm he sent 4 heavy handed individuals to my home (where my family and children live together with the family and children of my two brothers) to intimidate me and my brother.”
[32]The video recording exhibited to Ali’s first statement comes from the claimants’ security cameras. After some technical difficulties I was able to view this, in conjunction with the transcripts and translations (prepared by professional translators, from the Iraqi Arabic spoken between the Iraqi participants and English when the police appeared). The video quality was good. The audio was reasonable, so that during the period when English was being spoken I could distinctly make out some of what was said. There are two camera positions, one showing the entrance door and corridor to the flat and the other showing the living room. The latter matches the description in the claimants’ evidence of how they use their premises at Prince of Wales Terrace, namely as a mix of business and residential uses. The room contains antiques and living room furniture.[33]In summary the key features of the video recording and transcript/translation are the following. The four defendants are let into the flat by Ali, who stands away from them as they enter. They then pass by him and into the flat. His body language is not welcoming but consistent with surprise at finding four men entering the flat. Ali does not at first follow the four men, who go into and remain in the living room talking amongst themselves for a couple of minutes. Mr Sabir photographs a number of items in the room with his phone, and picks up a sabre and brandishes it. Ali enters and very promptly Basim tells him they are not staying long. He gets up close to Ali adopting an aggressive body position and jabs his finger at him. He demands that Ali returns the items, saying “save the items”. He is asked by Ali to sit down but demands the items again. Ali asks “Let me think about the matter. Tomorrow I will respond to you”. Basim says aggressively “No, No, No, I am not leaving from here until I collect the items”. When Ali says firmly he will not give them over, Basim demands to Mr Sabri “Call the police.” This sequence of exchanges between Ali and Basim takes about 2 ½ minutes. None of the other three men takes any apparent step to intervene during this period.[34]Mr Sabri declines to call the police, and tries to calm Basim down, asking him to sit down and calm down. Ali leaves the room. Basim repeatedly demands that Mr Sabri call the police or give him the phone. Mr Sabri says, addressing Basim:
“Allah save you, not in this way” and encourages Basim to talk to Ali. The men remain in the room for some twelve minutes debating what should happen next, at which point the police arrive with Ali. There is then angry shouting and whilst this is going on Almaghir enters. In his presence someone says in Arabic “liar”
. Ali responds angrily “liar!” and tells the police officer that someone (it seems to be Basim) has made that allegation. This is wholly consistent with Ali’s statement.[35]Events then proceed in the way described in Ali’s statement, or at least in a way that appears consistent with his account of things (the participants are often talking over one another so that some of the sense is lost). Of interest and in my judgment of importance to the decisions I have to make are the accounts of events given by Ali to the police and to third parties on the phone that are on the recording. These are just after the encounter with the four men. To the police Ali says, according to the transcript “He called me: are you here? I said: we are here. He said can I come. He said alone. When open the door I saw four of them what they attacked what immediately in.” He then goes on to allege that he was threatened. After the police leave Ali calls two or more people and refers to Khafaf having “brought to me [a] gang”, stating that the gang had been brought to “threaten me here” and stating that he was shaking whilst talking. My clear impression from the recordings showing Ali after the events of that evening is that he was highly excited, overwrought and agitated as a result of what had happened. He appears to me to have kept reasonable control of his emotions during the most threatening episode, in which Basim spoke aggressively “in his face” whilst jabbing his finger at Ali, but afterwards, as is often the case, he let his underlying feelings show.[36]Ali’s 2nd statement recounts exchanges between him and someone called Sajed Al Uboodi (“Sajed”). Sajed called Ali on 4 April 2014, shortly after papers had been served on Basim and then and subsequently sought to act as an intermediary on behalf of “the defendants”. Ali and Sajed spoke on the morning of Sunday 6 April when Ali returned a call from the night before. Ali’s statement says he asked what Sajed wanted and that “Sajed replied rather nervously that he was now no longer working with the Defendants and that he had been told by the Defendants that ‘they will be dealing with you and your brother’. Sajed made it clear that he was speaking on behalf of everyone.”[37]Ali makes clear how he understood this by describing it as “the threat by the defendants that I had been given through Sajed”. He goes on to say that “Naturally on hearing this I felt very threatened”. He recounts seeking a witness statement from Sajed who said he could not do that but repeated what he had said previously. This statement of Ali is dated 8 April 2014. It is apparent from Ali’s 3rd statement that in due course, on 5 May, Sajed made a statement which took issue with this account, and that other defendants also disputed it. However, Mr Sabir made a statement dated 10 April 2014 “in response to the statement of ali Al Hamadari … dated 9th.04.2014” which can only be a mistaken reference to Ali’s 2nd statement. Mr Sabri’s statement does not dispute this allegation in Ali’s statement.[38]Ali’s fourth statement adds to the evidential picture so far as Mr Sabri is concerned. He states that on or around 17 July 2014, whilst Ali was at Gray’s market, Mr Sabri approached his driver and asked “Why do your uncles make this case big? Why all this fuss?” (The reference to uncles is said to be due to the claimants being a lot older than their driver). The driver is said to have replied that Mr Sabri and the other individuals had threatened the claimants in their home at night. The conversation ended there. Ali’s statement alleges that this was a breach of the injunction and that he remains concerned that Mr Sabri will continue to be a threat to him and his family unless restrained.[39]Generally, I accept the claimants’ evidence about the course of events before and on 12 March 2014. Based on that evidence I find that on the balance of probabilities the visit to the claimants’ flat was something organised and led by Shamsi at the instruction or request of Khafaf; and that Shamsi foresaw and intended that the group would intimidate the claimants into returning the goods claimed by Khafaf. I find that Mr Sabri knew this before he attended at the claimants’ flat on the evening of 12 March 2014; he knew that Khafaf had made demands for the return by the claimants of property which he claimed was his; and that the claimants had refused to deliver the property; and that he and the others were attending the flat that evening under the leadership of Shamsi, on behalf of Khafaf, with the purpose and intention of enforcing Khafaf’s demands by intimidating the claimants (no other reason for attending the flat “mob handed” having been suggested). He agreed to participate in such conduct. I find that Khafaf attended the premises at the same time and was waiting outside and that Mr Sabri and the others were aware of this.[40]I find that Mr Sabri set out with the knowledge and intention I have described knowing also that it was late at night, and that – at least by the time the four men arrived at the premises – he was or should have been aware that the premises were residential. He knew that he was an unknown figure to the claimants and he knew or at least should have known that this would be likely to make his presence the more intimidating. He was present at the door when Shamsi lied to Ali by saying that he was alone, and he therefore entered the flat knowing that deception had been used in gaining entry. In summary, therefore, Mr Sabri participated in a joint venture to attend as a gang of four to intimidate two men late at night in their own home as a means of enforcing the demands of an individual, Khafaf, with whose business he had no connection. He continued to participate in the venture knowing that the leading figure in it had used deception to gain entry or at least in the process of doing so.[41]I had noted in pre-reading of the translation Mr Sabri’s attempts to calm things down once Basim had acted in the very aggressive way he did towards Ali, but Mr Jones has very fairly drawn my attention to it at as something on which Mr Sabir would no doubt rely if he was present. Mr Jones submits however, and I agree that this was conduct of a kind that Mr Sabri should reasonably have foreseen as likely to occur as part of the process of seeking to intimidate; that by the time Mr Sabri tried to calm things it was too late, the aggressive deed had been done; and that the four men’s conduct was in any event intimidating and likely even without the especially aggressive speech and gestures used by Sabir.[42]My reservation about the evidence is that it does appear that Ali overstated the position when telling the police officer of what had happened, in that he stated there had been threats to kill. The evidence does not sustain an allegation of threats to kill or even explicit threats to cause physical harm. It is not the claimants’ case that such threats were uttered on the night of 12 March 2014. It is not unreasonable, however, for Ali to have inferred an implicit threat from the way that Basim behaved. I do not, either, believe this evidence involved deliberate untruth. My conclusion is that it was exaggeration reflecting the heat and emotion of the aftermath of what was a disturbing incident for Ali. On the other hand, viewing the video recording and hearing what Ali said on the phone afterwards it is my conclusion that his written evidence understated somewhat the impact on him of the attendance of the “gang”. He was clearly shaken, and in my judgment that is wholly understandable and reasonable.[43]I also accept Ali’s account of what happened between him and Sajed, and Ali’s account of the exchange between Mr Sabri and his driver. In relation to the former, I bear in mind that Ali’s account of what Sajed said about what “the defendants” told him is double hearsay; that I have not heard from Sajed; and that it is apparent that Sajed and others challenged Ali’s evidence on this point. But I also bear in mind that as noted above Ali’s account has not been challenged by Mr Sabri. I find that Mr Sabri was party to a statement by the defendants to Sajed, which he intended to be communicated to the claimants, that the defendants would be “dealing with” the claimants. This is plainly a threatening or intimidating statement and my conclusion is that it was intended as such. This was a breach of the interim injunction, which prohibits communication with the claimants directly or indirectly, other than through their solicitors.[44]As to the account of the conversation with the claimants’ driver, this again is hearsay but bearing that in mind I find as a fact that Mr Sabri was told by the claimants’ driver that the reason the claimants were making a fuss about the case was that they had been threatened in their home at night, and that Mr Sabri did not deny this or respond in any other way. This supports my conclusion that what occurred on 12 March 2014 was indeed threatening behaviour. It is also consistent with the existence of a continuing risk of repeat conduct, in the absence of an injunction.[45]I do not accept Ali’s suggestion that this conversation involved a breach of the interim injunction; it was not a communication with the claimants, direct or indirect. Nor do I read this exchange as in itself indicative of a threat of repetition of conduct such as occurred on 12 March. Ali’s 3rd statement refers to rumours he has heard that Mr Sabri may have some form of criminal record, on which Mr Jones sought to rely in support of the injunction claim. I do not think it right to place any weight on this unattributed rumour. I note, however that Mr Sabri’s statement of 10 April 2014 contains no expression of regret. Nor is there any evidence there or elsewhere that Mr Sabri has at any time apologised or given or offered any undertaking or promise that he will not in future act in such a way as to harass the claimants or cause them alarm or distress.

The applicable law

[46]The relevant provisions of the Protection from Harassment Act 1997 (PHA), are as follows:- “1.— Prohibition of harassment.(1) A person must not pursue a course of conduct— (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (1A) A person must not pursue a course of conduct— (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above)— (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.(2) For the purposes of this section … the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other … 3.— Civil remedy. (1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings … 3A Injunctions to protect persons from harassment within section 1(1A) (1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (“the relevant person”). (2) In such a case— (a) any person who is or may be a victim of the course of conduct in question, or (b) any person who is or may be a person falling within section 1(1A)(c), may apply to the High Court … for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.” 7.— Interpretation of this group of sections. …. (2) References to harassing a person include alarming the person or causing the person distress. ….(3) A “course of conduct” must involve— (a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or (b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons. (3A) 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 (as well as conduct of the person whose conduct it is); 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.(4) “Conduct” includes speech.”[47]A convenient summary of what must be established to make out a cause of action for damages for harassment was set out by Simon J in Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB), [142]:(1) “There must be conduct 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’.”[48]It is clear that in principle liability for harassment may be established on the basis that the defendant is part of a joint venture (see Daniels v Metroolitan Police Commissioner [2006] EWHC 1622 (QB) [9]) but s 7(3A) assists a claimant, in a case where one defendant A aids and abets another B, by spelling out that in such a case the conduct, knowledge, and purpose of B and what he ought to have known “shall be taken” to be that of A. Aiding and abetting, counselling and procuring are terms of art in the criminal law but this subsection is not expressed to be limited in its application to criminal cases and I see no reason why it should be read as so limited. On the contrary, it is a provision about interpretation of the whole group of sections that precede it, some of which impose civil and some criminal liability.[49]It is obvious, but worth stating nonetheless that for the purposes of injunctive relief it is not necessary to establish that the defendant has already engaged in a course of conduct meeting the requirements of s 1(1) or 1(1A). It is sufficient to establish that he may do so unless restrained. This is spelled out in s 3A(1) in respect of an “apprehended breach” of s 1(1A), but the same must be so of an apprehended breach of s 1(1). If the defendant has already engaged in a course of conduct that would justify an award of damages that will tend to strengthen the case for an injunction.

Application of the law to the facts

[50]The key issues in this case are, in respect of each claimant,(1) whether the conduct engaged in or attributable to Mr Sabri crosses the threshold of seriousness for harassment; and(2) whether there is a sufficient case for a permanent injunction. I bear very much in mind that the threshold is relatively high one. It is important that the Act should not become a springboard for parties to gain wide-ranging injunctions on the basis of conduct which is no more than unreasonable. I have however concluded that the evidence taken as a whole discloses a course of conduct by or attributable to Mr Sabri which satisfies the requirements of s 1(1) of the PHA so far as Ali is concerned; and a sufficient threat that in the absence of an injunction there would be harassing conduct by Mr Sabri towards each of the claimants.[51]I do not, for this purpose, attribute to Mr Sabri any knowledge of or involvement in the course of events up to and including 11 March 2014. There is no evidence, nor any basis for inferring, that he took any part in those. I base my conclusion on the findings of fact identified above. I have not found it necessary to consider whether s 1(1A) is engaged.[52]On 12 March 2014 Mr Sabri was in my judgment aiding and abetting Shamsi, the group leader. Accordingly, by virtue of s 7(3A) of the PHA Shamsi’s conduct, knowledge, and purposes are to be attributed to Mr Sabri. My findings about Shamsi’s conduct and state of mind are set out above. In any event, in my judgment, Mr Sabri’s own conduct meets the threshold of seriousness. The conduct in which he knowingly participated, in entering the claimants’ home at night, uninvited and with the use of deception, with a view to intimidation, was conduct objectively calculated to cause alarm or distress, and it certainly caused the latter in my judgment. It was markedly worse than unreasonable. A reasonable person in Mr Sabri’s position would have understood the conduct of the group to be oppressive and intimidating and harassing towards the person present at whom it was directly targeted (Ali). To some extent, Mr Sabri clearly did in fact understand the group’s conduct to be unacceptable; that is why he intervened to try to calm down Basim. As I have indicated, however, Basim’s behaviour was reasonably foreseeable and the group’s conduct was in my judgment serious enough to cross the threshold even if Basim’s conduct is disregarded. I do not consider the threshold was crossed so far as Almaghir is concerned. Though Almaghir was targeted and was upset he was not a witness to the main events.[53]In his written submissions Mr Jones urged that the events of 14 March 2014 could if necessary be viewed as a series of occasions making up a course of conduct. That in my view is artificial. This, so far as Mr Sabri was concerned, was conduct on a single occasion and for that reason, whilst it otherwise met the Act’s requirements, it would not amount to a sufficient basis for a claim for damages under the Act. But it was enough to justify a reasonable apprehension of further similar conduct which would, when taken together with the conduct on 14 March 2014 amount to harassment of Ali, and a reasonable apprehension that Almaghir would also be subject to harassment. Hence, what happened on 14 March was enough to justify, as regards Mr Sabri, the interim injunction which was initially sought and granted. The behaviour of 14 March 2014 to which Mr Sabri was party would also in my judgment have been enough, in the absence of any expression of contrition or recantation or undertaking or promise not to repeat by Mr Sabri, to justify a permanent order in respect of each claimant.[54]But the behaviour of 14 March does not stand alone. It was followed soon afterwards by the threatening message passed to Ali, on behalf of both claimants, by Sajed, on behalf of all the defendants including Mr Sabri. That was plainly worse than just unreasonable; it was objectively likely to cause alarm and distress and was oppressive and unacceptable. It would have justified criminal proceedings. By this point, in my judgment, Mr Sabri had been party to a course of conduct within the meaning of the Act, amounting to harassment, so far as Ali is concerned. By this stage he had a complete cause of action for damages under the Act, had he wished to pursue it. He has not pursued such a claim, but the fact that this defendant engaged in a course of conduct on two occasions amounting to harassment of Ali strengthens the case of both claimants for a permanent injunction. The nature of the second incident means that it would by itself in my judgment be sufficient to support a claim by them for an injunction, given the absence of anything to suggest that the threat has gone.

Conclusion

[55]The claimants have made out their case for an injunction to restrain Mr Sabri from harassing them, and I grant an injunction in the terms sought by Mr Jones with one modification. It is unnecessary to set out in full the order that I am making, but its terms are almost identical to those to which the other defendants have consented, subject only to a reservation in case relations change in future and either claimant at some stage consents to a communication being made by Mr Sabri with him, otherwise than through the claimants’ solicitors.

Cited in 1 later judgment