Ferguson v British Gas Trading Ltd

A course of conduct is harassment only if, viewed in its context, it is sufficiently grave to be oppressive and unacceptable and capable of sustaining criminal liability. The civil claim under the Protection from Harassment Act 1997 has the same elements as the criminal offence, but is proved on the balance of probabilities.

Persistent unjustified demands and threats of disconnection, legal proceedings and adverse credit reporting may satisfy that standard. A corporate defendant cannot secure strike-out merely by asserting that the conduct was computer-generated or that no directing mind has been identified. Corporate attribution depends on the construction and policy of the statutory wrong and on the facts.

Lisa Ferguson alleged that, after changing gas supplier, British Gas repeatedly sent unjustified bills and threats to disconnect her gas, bring proceedings and affect her credit rating. She claimed damages for anxiety and financial loss under the Protection from Harassment Act 1997.

HHJ Seymour QC, sitting as a judge of the High Court, refused British Gas's application to strike out the claim and transferred the proceedings back to the County Court. British Gas appealed, contending that the pleaded conduct could not meet the requisite gravity for harassment and that it could not be attributed to a company without pleading a directing mind or a vicariously liable employee.

The central question was whether either ground made the claim incapable of succeeding at trial.

1. Appeal dismissed. The pleaded facts had to be assumed true on a strike-out application. The claim was not hopeless and British Gas's explanations or excuses could not be used to defeat it before trial.

2. The court accepted the gravity threshold stated in Majrowski v Guys and St. Thomas’s NHS Trust [2007] AC 224. Harassment must be more than ordinary irritation, annoyance or unreasonable behaviour. It must be sufficiently grave to cross the boundary into oppressive and unacceptable conduct capable of attracting criminal liability under section 2. Context matters. On the pleaded facts, months of repeated unjustified bills and serious threats could reasonably be found to meet that standard. The fact that the communications were computer-generated, or that the claimant knew they were unjustified, did not remove their capacity to cause anxiety or make them less serious.

3. The civil remedy under section 3 of the Protection from Harassment Act 1997 concerns the same breach of section 1 as the criminal offence under section 2. The difference is the standard of proof: balance of probabilities in civil proceedings and the criminal standard in a prosecution.

4. The corporate-liability point also could not justify strike-out. The directing-mind analysis in Tesco v Nattrass [1972] AC 153 depended on the statutory defence in the Trade Descriptions Act 1968. Attribution is a matter of construing the particular substantive rule and its policy. The court declined finally to determine the test under the 1997 Act on incomplete authority and undeveloped facts, but held that the absence of a pleaded directing mind did not make the claim unsustainable.

5. Lord Justice Lloyd added that the section 1(2) reasonable-person comparison presupposes a prior decision about who was responsible for the corporate course of conduct. It does not itself answer the prior attribution question. Lord Justice Sedley agreed that incorporation could not immunise a company from liabilities that would attach to a natural person.

• Court of Appeal (Civil Division) Dismissed British Gas's appeal and upheld the refusal to strike out the harassment claim.

• High Court of Justice, Queen’s Bench Division HHJ Seymour QC, sitting as a judge of the High Court, refused the strike-out application, refused permission to appeal and transferred the claim back to the County Court.