Roberts v Bank of Scotland Plc (Rev 1)

A creditor may make reasonable contact to seek repayment, but the existence of a debt does not permit repeated telephone calls after the debtor has clearly declined further discussion. Under the Protection from Harassment Act 1997, harassment requires a course of conduct which, assessed in its full known context, is oppressive and unacceptable and sufficiently grave to justify criminal sanctions. Repeated calls coupled with threats to continue can satisfy both the gravity and knowledge requirements. Polite language does not prevent conduct from being intimidatory. The Vento bands, adjusted for inflation, may guide damages for injury to feelings. Serious and sustained non-discriminatory harassment may fall within the middle band, with the precise award ordinarily for the trial judge.

The claimant was a customer of the bank with current, credit-card and loan accounts. Between December 2007 and January 2009, the bank made or attempted 547 telephone calls to her, largely through an automated call-centre system. She repeatedly said that she did not wish to speak to the bank and asked it to stop calling. The callers said that the calls would continue unless she answered security questions and discussed her finances.

HHJ Shaun Spencer QC held that the calls amounted to harassment and later assessed damages at £7,500. The bank’s counterclaim for sums due on the accounts was not disputed. The bank appealed on liability and quantum. The central issues were whether debt-collection calls in their full context met the statutory threshold for harassment and whether the damages award was excessive.

Disposition

The Court of Appeal unanimously dismissed the bank’s appeal on liability and quantum.

1. Under section 1 of the Protection from Harassment Act 1997, the conduct had to be assessed in its full context. Harassment is conduct which is oppressive and unacceptable, rather than ordinary annoyance or irritation, and which has sufficient gravity to justify criminal sanctions. The objective knowledge requirement also required consideration of the information known to the bank, including the recipient’s circumstances and her clear refusal to engage.

2. The bank was entitled initially to contact the claimant about indebtedness and seek a mutually acceptable solution. It had no right, however, to bombard her with calls after she had made clear that she did not wish to discuss the matter. It should then have used its formal legal remedies. The frequency and content of the calls, including repeated threats that they would continue, were intimidatory and controlling. Their polite form did not alter that conclusion. The bank knew, or plainly ought to have known, that its conduct amounted to harassment.

3. The court applied the guidance in Majrowski v Guy's and Thomas's NHS Trust [2006] UKHL 34, Sunderland City Council v Conn [2007] EWCA Civ 1492, and Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46. The calls easily crossed the requisite threshold and could have founded criminal liability, although the claimant pursued civil damages.

4. The judge was entitled to use the injury-to-feelings bands in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, with the inflationary adjustment in Da'Bell v NSPCC [2010] IRLR 19. This was serious, repeated harassment but not a top-band case. The £7,500 award was within the middle band and within the trial judge’s discretion. An appellate court would not substitute its own evaluation absent plain error.

In concurring observations, McCombe LJ and Arden LJ stressed that automated systems must be operated with sufficient safeguards to prevent tortious conduct; a bank should not treat damages for harassment as an ordinary operating cost.

1. Court of Appeal (Civil Division) — In [2013] EWCA Civ 882, dismissed the bank’s appeal on liability and quantum.
2. County Court — HHJ Shaun Spencer QC held on 10 February 2012 that the bank had harassed the claimant. At the damages assessment on 27 September 2012, he awarded £7,500. The bank obtained judgment on its undisputed counterclaim for the outstanding account balances.