S & D Property Investments Ltd v Nisbet

Harassment under the Protection from Harassment Act 1997 requires conduct sufficiently grave to cross the boundary from unattractive or unreasonable behaviour into oppressive and unacceptable conduct. Context is important. Anxiety is compensatable even where it falls short of psychiatric illness, and it may be proved by lay evidence. A claimant seeking financial loss must establish the necessary causal link. The loss-of-a-chance principle does not remove the need to prove the claimant’s own ability and willingness to take the steps required to obtain the alleged benefit. A company may be vicariously liable where its agent harasses a debtor while acting within actual authority to recover the company’s debt. An equitable set-off may be available where the harassment claim is inseparably connected with the debt claim.

S & D Property Investments Ltd claimed repayment of loans made to Christian Nisbet. Nisbet admitted the debt but counterclaimed against Stephen French for harassment and alleged that S&D was vicariously liable for French’s conduct. The claims were consolidated. The court had to determine whether French’s conduct amounted to harassment, whether it caused anxiety or financial loss, whether S&D was vicariously liable, and whether any damages could be set off against the debt. Quantification of alleged financial loss was reserved, subject to liability and causation being established.

1. Harassment. Applying the approach in Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224, Conn v Sunderland City Council [2008] IRLR 324 and Ferguson v British Gas Trading [2009] EWCA Civ 46, the court held that the conduct before 15 December 2007 did not reach the required level of gravity. The later threats and repeated references to violence, messages on 21 December, messages between 6 and 10 January, and visits on 12 and 14 January formed a course of conduct amounting to harassment.
2. French knew, or ought reasonably to have known, that the conduct amounted to harassment. The statutory requirement of conduct on at least two occasions was satisfied.
3. Anxiety. Section 3(2) of the Protection from Harassment Act 1997 permits compensation for anxiety short of psychiatric harm. Medical evidence is not essential. The court may rely on evidence from the victim and other lay witnesses, together with the likely effect of the conduct. Damages of £7,000 were awarded.
4. Financial loss. The claimant failed to prove that, but for the harassment, the companies would have secured the proposed joint venture or hotel agreement, or secured either agreement earlier. The loss-of-chance doctrine, discussed in Allied Maples Group Ltd v Simmons and Simmons [1995] 1 WLR 1602, did not assist because the claimant had not proved the historical impact of the harassment, his ability and willingness to complete necessary steps, or an evidential basis for assessing the alleged chance. Issues of foreseeability and reflective loss therefore did not arise.
5. Vicarious liability. S&D had authorised French to recover the debt and left the manner of recovery to his judgment. His harassment was part of that activity and fell within his actual authority. S&D was therefore vicariously liable.
6. Set-off and orders. Applying Bim Kemi AB v Blackburn Chemicals Ltd [2001] 2 Ll Rep 93, the harassment claim was inseparably connected with the debt claim and it would be manifestly unfair to enforce the full debt without allowance for the damages. The £7,000 damages were set off against the judgment debt, subject to interest adjustments. The application for expert evidence was refused and the stay on enforcement of the balance was to be lifted.