Hipgrave & Anor v Jones

Civil proceedings under section 3 of the Protection from Harassment Act 1997 are governed by the balance of probabilities. The court must apply the strictness appropriate to the seriousness of the allegations and their consequences for both parties. The criminal standard applicable to criminal offences and certain preventative public-law orders does not govern a private civil claim for damages or an injunction.

An injunction remains discretionary. Findings of harassment do not automatically require an injunction. The order must be necessary, proportionate and no wider than required, with proper regard to any engaged Convention rights. A course of conduct requires at least two linked occasions, but spontaneous or unplanned incidents may satisfy that requirement.

The claimant obtained injunctions in the Luton County Court against three defendants under section 3 of the Protection from Harassment Act 1997. The trial judge found harassment proved on the balance of probabilities. The first and third defendants appealed.

The principal issue was whether an application for a civil injunction under section 3 required proof to the criminal standard, by analogy with anti-social behaviour orders. The third defendant also argued that two incidents involving her were insufficiently linked to constitute a course of conduct.

1. The appeals were dismissed. The trial judge was entitled to apply the civil standard of proof and to find the relevant incidents established.

2. Proceedings under section 3 of the Protection from Harassment Act 1997 are civil proceedings. The fact that breach of an injunction is a criminal offence does not convert the underlying civil claim into criminal proceedings. The statutory scheme, remedies and direct conflict between the parties’ Convention rights distinguish it from an application for an anti-social behaviour order under the Crime and Disorder Act 1998.

3. The balance of probabilities must be applied with the strictness appropriate to the seriousness of the matters proved and the consequences for both claimant and defendant. The criminal standard is ill-adapted to the flexibility required where actual or apprehended harassment and competing Convention rights are considered.

4. Where an injunction is sought, the court must separately decide whether relief is necessary and proportionate. It must balance the claimant’s rights, commonly under article 8 of the Convention, against the defendant’s rights, potentially under articles 8, 10 and 11. A finding of harassment does not necessarily require an injunction, and any injunction must be no more extensive than necessary.

5. A course of conduct is a question for the tribunal of fact. It must involve at least two occasions and a sufficient link between them. The occasions need not be planned. Here, the threatening language, family solidarity and circumstances of the two incidents provided a sufficient nexus involving the third defendant.

High Court (Queen’s Bench Division): Appeals from the Luton County Court dismissed. The trial judge’s application of the civil standard and findings of harassment were upheld.