Iqbal v Dean Manson Solicitors

For harassment under the Protection from Harassment Act 1997, the court must assess the alleged course of conduct as a whole. Each constituent act need not amount to harassment when viewed in isolation. Individually neutral or insufficient acts may acquire a harassing character through repetition and context.

Conduct must cross the boundary from unattractive or unreasonable behaviour to oppressive and unacceptable conduct of sufficient gravity to sustain criminal liability. Litigation communications can exceptionally cross that boundary.

A post-claim pleading may illuminate the character of earlier conduct and, where justice requires, may itself complete a course of conduct. A partnership is capable of being a defendant to the statutory civil claim.

A solicitor brought a claim under the Protection from Harassment Act 1997 against his former employer, a firm of solicitors. He relied principally on three letters which attacked his professional and personal integrity and were written during separate litigation in which he represented the firm's opponent.

The county court struck out the claim. It held that the letters disclosed no credible cause of action and that a partnership could not be sued under the Act. On the first appeal, Teare J held in [2010] EWHC 1249 (QB) that only the third letter was arguably harassing and therefore no course of conduct had been established.

The central issues were whether the letters were capable, individually or collectively, of amounting to harassment; whether the defence could provide evidence of or contribute to the course of conduct; and whether a partnership could be liable for the statutory tort.

1. Appeal allowed and claim reinstated. Rix LJ, with whom Smith and Richards LJJ agreed, held that each of the three letters was arguably capable of contributing to harassment. Viewed together, they could disclose a deliberate campaign attacking the solicitor's professional and personal integrity to pressure him into ceasing to act or advising his client to meet the firm's demands. The allegations arguably crossed the boundary from irritation or regrettable conduct to oppressive and unacceptable behaviour of sufficient gravity to sustain criminal liability.

2. The Protection from Harassment Act 1997 is directed to a course of conduct which amounts to harassment. It does not require every constituent incident, standing alone, to possess that quality. The incidents must be examined collectively. Conduct which initially appears neutral may become harassing when repeated or understood in the light of later events. The three letters were close in time, concerned the same litigation and were arguably connected.

3. A defendant's pleading made after issue of the claim may be used as evidence illuminating the proper interpretation of the pre-claim conduct. Its later date does not prevent that evidential use. Moreover, the ordinary practice that a cause of action must be complete when proceedings begin may be departed from where justice requires. Since section 3(1) permits a claim based upon an apprehended breach, it would be profitless and harsh invariably to require fresh proceedings when the defendant's later conduct completes the course of conduct. Whether the defence did so here did not require final determination.

4. Litigation requires freedom of speech and naturally involves contention. Nevertheless, it may exceptionally be abused. Irrelevant, scandalous or abusive allegations deployed as part of a malicious campaign are capable of contributing to harassment, although courts should avoid encouraging satellite litigation.

5. A partnership may be made a defendant to a civil claim under section 3. Under the Interpretation Act 1978, a “person” includes an unincorporated body unless a contrary intention appears. Section 7(5) expressly confines the victim, rather than the defendant, to an individual. The statutory recognition of civil vicarious liability made it irrational to distinguish between incorporated and unincorporated employers. Questions concerning the liability of individual partners were procedural or remedial matters and did not remove jurisdiction to sue the partnership.

1. Court of Appeal (Civil Division): Permission for a second appeal was granted. The appeal was allowed and the harassment claim reinstated: [2011] EWCA Civ 123.
2. High Court, Queen's Bench Division: Teare J held in [2010] EWHC 1249 (QB) that the procedural error did not invalidate the proceedings, but upheld the termination of the claim because only one letter was arguably harassing. He also stated obiter that a partnership could not be a defendant under the Act.
3. Croydon County Court: HHJ Ellis struck out the claim. He considered that the letters disclosed no credible cause of action and that a claim could not be brought against a partnership.