Tag Archives: PHA

Carina Trimingham drops Appeal

Carina TriminghamMuch to my disappointment, it was announced last month that Carina Trimingham’s well founded (in my view at any rate) appeal was withdrawn shortly before it was due to be heard.

It was widely recognised that the case raised important issues about the interaction between harassment, privacy and freedom of expression. I was not alone in considering that the conduct of the Daily Mail had been unacceptable and that the judgment of Tugendhat J was vulnerable.

A post on the Inforrm blog, suggests that it was withdrawn for financial reasons which is a great shame. I’d like to think that her lawyers might have been willing to conduct the case on a conditional fee basis (and if they weren’t she should have called me!) but that alone is not enough. Conditional fees only work if there is insurance against liability for your opponent’s costs (or you are willing to take an enormous risk) and if the Daily Mail were lining up the big guns, their costs risked being very significant.

So not only does this important issue not get the hearing it deserves but Carina Trimingham herself remains without a remedy for the vilification to which she was exposed and all for financial reasons. Shame.

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Harassment Damages Update

Picture of Money

What’s the claim worth?

There have been some recent awards of damages under the PHA which will shortly be added to the list on the Harassment Damages page along with some older cases which I have unearthed. Owing to the volume of cases, the display needs some reworking but that will be a job for another day …

The most recent case is an unreported decision in the Middlesbrough County Court in December 2012 where an employee was awarded a total of £13,565 for harassment by her manager. I don’t have a copy of the judgment yet so can’t identify the period involved nor indeed how the award is made up.

A report on the Cloisters site (the very excellent Andrew Buchan represented the Claimant) says she was awarded £10,000 and £3,000 for ‘injury to feelings’ which suggests there was actual psychiatric injury as well.

Other awards which slipped under my radar earlier include the (in)famous Ken Bates case in April 2012 where he was ordered to pay £10,000 compensation to Melvyn Levi. That award reflected some psychiatric injury and was in relation to what came down to 6 incidents of broadcasting a radio message (in which listeners were asked to ring in with news of the whereabouts of Mr Levi) and an offensive article in a match program. The context was important so the full judgment should be read if there is any intention to rely on it.

In July 2011, in Mitton v Benefield, a couple were awarded £7,000 for the result of an increasingly nasty neighbour dispute. They had endured nearly 4 years of excessive scrutiny and intermittent abuse and false allegations.

In November 2004, in Wynn-Jones v Bickley (not on BAIILI) again in the context of a property dispute – this time in relation to alleged encroachment – a couple was awarded £3,000 damages for harassment over a period of about 3 months involving dumping of debris on land and use of abusive language.

Separately, there have been 2 recent judgments for damages for harassment which have overlapped with related claims.

In WXY v Gewanter & Others, highly personal information was published on the internet and threats were made to publish more. This was found to be both harassment and misuse of private information. Although the Claimant asked for separate awards, on 14 March 2013, a combined award of £24,950 was made which included £5,000 aggravated damages.

That award was practically identical to the award of £25,000 made the very next day by the same Judge, Tugendhat J, which again included £5,000 aggravated damages. In Thompson v James & Others the Claimant was found to have published 5 defamatory blog posts about the Chief Executive of Carmarthenshire council. They were found to have been harassment and the award was again combined.

 

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Supreme Court rules on ‘Detecting Crime’ Defence

The Detective Game

Yesterday, the Supreme Court handed down judgment in Hayes v Willoughby [2013] UKSC 17 and upheld (for different reasons) the Court of Appeal decision. My post following the Court of Appeal can be read here.

To recap, Mr Willoughby was employed by one of Mr Hayes’s companies. After they had fallen out, for some 7 years between 2002 and 2009 Mr Willoughby had waged what was described “a lengthy and persistent campaign of correspondence and investigation” of and about Mr Hayes centring on allegations of fraud, embezzlement and tax evasion in relation to Mr Hayes’s management of his companies.

This took the form of sending numerous letters to the Official Receiver, the police and the Department of Trade and Industry (the Official Receiver alone estimated that he had received 400 communications) which continued after the bodies investigated and found no basis in the allegations.

As readers know well, the Protection from Harassment Act 1997 (“the Act”) makes harassment a civil wrong and a criminal offence. However, under s.1(3) of the Act it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime.

The trial judge had found that Mr Willougby’s conduct constituted harassment but that he had a defence under s.1(3)(a) because he genuinely believed in the allegations involving Mr Hayes and wished to persist in investigating them. Although there were other actions which could not be justified as conduct to prevent or detect crime, they did not constitute a separate course of conduct and therefore were protected by the campaign as a whole not being unlawful.

The Court of Appeal allowed Mr Hayes’s appeal on the ground that the defence is confined to a course of conduct the only purpose of which is preventing or detecting crime. There is no reason to protect a defendant whose course of conduct constitutes harassment because one of the purposes is the prevention or detection of crime unless his course of conduct as whole was reasonable.

The Supreme Court has dismissed the appeal by Mr Willoughby by a majority of four to one (Lord Reed Dissenting) and doing so has introduced another concept into interpretation of conduct under the Act; ‘rationality’.

In the context of the defence, the prevention or detection of crime need not be the sole purpose of the alleged harasser, but only the dominant one. If that is so, that purpose will afford a defence provided that the purpose is rational. Broadly speaking, this test lies between pure subjectivity (the view of the perpetrator alone) and objectivity (the view of the mythical ‘reasonable man’).

As Lord Sumption puts it “A test of rationality only applies a minimum objective standard to the relevant person’s mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse.

If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed.

If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment.

Here, this tests meant that after June 2007, Mr Willoughby’s conduct against Mr Hayes was irrational. He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose.

The decision provides useful clarification of the application of the defence and will make it difficult to bring a claim for harassment where it is invoked. The defence is not, as first thought, limited to authorities such as the Police but is available to anyone who is pursuing a course of conduct for the purposes of detecting or preventing crime. In justifying that professed purpose, it is not necessary that the purpose be objectively reasonable; the onus will be on the person claiming harassment to show that the purpose was irrational.

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Damages for Harassment

Picture of Money

What’s the claim worth?

After the distractions of Colombia, normal service is resumed as promised with the provision of a guide to the assessment of damages under the Protection from Harassment Act. A new page, imaginatively called Harassment Damages, explains the approach and lists several reported cases which may serve as guides to the amounts which may be awarded. Continue reading

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Why Carina Trimingham deserved better

Carina TriminghamI have been trying for ages to do a piece about Trimingham v Associated Newspapers which was of interest because, albeit late in the day, she amended her claims to include one of harassment under the Protection of Harassment Act 1997 in addition to invasion of privacy.

The judgment is so long and detailed that it was very hard both to summarise effectively and also to include in a post of reasonable length, a discussion of some aspects which troubled me. Thankfully, I don’t need to worry about summarising any longer because the excellent Gervase de Wilde has done it for me on the equally excellent Inforrm’s Blog.

Taking that piece as read, I will focus on some of the rationale of the decision which I consider to be wrong and therefore troubling if it is going to be relied on in other cases. It should be noted that I do not manage to do this at reasonable length … Continue reading

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