Hayes v Willoughby

Key legal principle: A defendant resisting a claim under section 1(3)(a) of the Protection from Harassment Act 1997 must have the subjective purpose of preventing or detecting crime, but that subjective purpose is subject to a minimal objective control of rationality. The court will not accept an entirely subjective test nor will it require full objective reasonableness where Parliament has not said so.

The appellant’s conduct may be justified by section 1(3)(a) only if he has actually applied his mind in a rational way to the evidence suggesting criminality and formed the view that the conduct was appropriate to prevent or detect crime. Obsessive persistence which is irrational, perverse or lacking any logical connection with the supposed purpose will not attract the protection of section 1(3)(a).

Background and relief sought: The claimant, Mr Hayes, sought damages for harassment and an injunction to restrain a continuing campaign of correspondence and intrusive acts by the defendant, Mr Willoughby, which had caused alarm and distress. The claim alleged a course of conduct amounting to harassment under the Protection from Harassment Act 1997. The defendant relied on the statutory defence in section 1(3)(a) that his conduct was pursued for the purpose of preventing or detecting crime.

Facts and procedural history: The dispute arose from business and employment disputes between the parties and related litigation. From late 2003 the defendant engaged in extensive correspondence with public authorities pressing criminal allegations against the claimant; the authorities investigated and rejected the allegations. The trial judge found that the defendant sincerely believed in the allegations and had a subjective purpose of preventing or detecting crime, but that after official investigations had shown no support for his allegations his persistence became unreasonable and obsessive. The trial judge nevertheless dismissed the claimant’s case on the basis that section 1(3)(a) required only a subjective purpose. The Court of Appeal reversed the trial judge, granted an injunction and remitted assessment of damages to the county court. The defendant appealed to the Supreme Court.

Issues for decision: (i) Whether section 1(3)(a) requires an objective or a subjective test of purpose; (ii) whether there is any additional requirement of rationality or similar minimum standard; and (iii) whether the defence requires the prevention or detection of crime to be the sole purpose of the defendant.

Court’s reasoning and conclusion: The Supreme Court (majority) concluded that section 1(3)(a) is essentially subjective in focus: the relevant enquiry is into the defendant’s purpose. However, Parliament did not intend that the defence should extend to conduct pursued with no real mental engagement with the evidence or in a way that is irrational, perverse or entirely divorced from the supposed purpose. Accordingly a minimum objective control of rationality applies to the defendant’s mental processes: he must have considered the material logically and formed the view that the conduct was appropriate to prevent or detect crime. On the facts the defendant’s persistence after June 2007 was irrational and therefore outside section 1(3)(a). It was unnecessary to decide whether the defence requires the preventing/detecting purpose to be sole; the court rejected the Court of Appeal’s conclusion that it must be sole and held the relevant purpose is the predominant one.

Wider context: The court noted the need to protect public authorities and responsible private investigators from unwarranted inhibition while guarding against private vigilantism and obsessive conduct that amounts to harassment. The majority adopted a rationality control while a dissenting judge warned against importing such an objective standard into a provision expressed in subjective terms.

The Supreme Court dismissed the appellant’s appeal. It held that section 1(3)(a) of the Protection from Harassment Act 1997 is concerned with the defendant’s subjective purpose of preventing or detecting crime, but that this subjective purpose is subject to an objective minimum standard of rationality: the defendant must have applied his mind rationally to the evidence and have had a logical connection between that purpose and his conduct. On the judge’s findings the defendant’s persistence after June 2007 was irrational and therefore he was not entitled to rely on section 1(3)(a).

First instance: county court judge dismissed the claimant's claim (judge applied a wholly subjective test and found defendant had the requisite subjective purpose). Court of Appeal: [2011] EWCA Civ 1541 allowed the claimant's appeal, granted an injunction and remitted assessment of damages to the county court. Supreme Court: [2013] UKSC 17 dismissed the defendant’s appeal, upholding the Court of Appeal’s order.