Bank of Scotland v Johnson (Rev 1)

In a harassment claim arising from debt-collection communications, letters and telephone calls may be assessed cumulatively for the required level of severity. An arguable case must be distinguished from harassment proved after proper factual investigation. A judge should not make a positive finding without giving the defendant a fair opportunity to present its case. However, a procedural error need not invalidate an otherwise proper order. Where the requested injunction has become academic after the debt is written off, a full trial solely to resolve costs may be disproportionate. Costs remain discretionary and may reflect success on appeal and the parties’ conduct.

Mrs Johnson brought a claim and injunction application against Bank of Scotland after correspondence and telephone calls from the bank and its agents sought payment of an overdraft while using confusing account references. The deputy district judge dismissed the claim after recording assurances that recovery activity would stop and future contact would be in writing. HHJ Staite allowed the appeal, recorded that the debt had been written off, and awarded Mrs Johnson half her appeal costs. The bank appealed, challenging the finding of unlawful harassment and the procedure adopted. The central issues were whether harassment could be found without a trial and whether that error affected the order ultimately made.

1. Appeal dismissed. The Court of Appeal upheld HHJ Staite’s order. The order was appropriate even though part of the judge’s reasoning was erroneous.
2. Under the Protection from Harassment Act 1997, the correspondence and calls could cumulatively establish a good arguable case that the necessary level of severity had been reached. Ferguson v British Gas Trading Limited [2009] EWCA Civ 46; [2010] 1 WLR 785 was a relevant authority, and the court adopted the summary of the law in Bank of Scotland v Roberts [2013] EWCA Civ 882. That did not amount to proof of harassment.
3. HHJ Staite was not entitled to find that harassment had been proved. She had not heard oral evidence, investigated the facts, or considered the statutory tort at a hearing where the bank had a proper opportunity to present its case. The proper conclusion was that harassment was arguable and, if necessary, required determination at trial. Frey v Labrouche [2012] EWCA Civ 881 was not analogous.
4. The deputy district judge had been entitled to decline summary judgment or an injunction and to record the bank’s assurance. He was not entitled to dismiss the claim entirely, because the assurance was not secured by an undertaking or injunction and later conduct might have required relief. An appeal lies against the order, rather than the judgment, under section 16 of the Senior Courts Act 1981, as illustrated by Lake v Lake [1955] P 336. The procedural error therefore did not invalidate HHJ Staite’s order.
5. By August 2012 the debt had been written off and the requested injunction had become academic. It would have been grossly disproportionate to order a full trial merely to determine costs. The award of half the claimant’s costs was a proper exercise of discretion under CPR rule 44.3.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 982, the appeal was dismissed and HHJ Staite’s order upheld.
• Chelmsford County Court, HHJ Staite: Permission to appeal was granted, the appeal from the deputy district judge was allowed, the debt write-off was recorded, and the bank was ordered to pay 50% of the claimant’s appeal costs.
• Chelmsford County Court, Deputy District Judge Keating: The claim and summary judgment application were dismissed, with no order as to costs, after the bank’s assurances were recorded.