Brand & Anor v Szilvia (aka Sylvie) Berki

Interim anti-harassment relief may be granted where the claimant is likely to establish harassment at trial and the circumstances justify restraint before trial. The court must balance Articles 8 and 10 without giving either presumptive priority. Under the Protection from Harassment Act 1997, harassment requires a grave, oppressive and unacceptable course of conduct, pursued with the requisite knowledge. A defendant’s mental illness does not ordinarily defeat the constructive and objective knowledge test. Where continuing publication is likely and damages are inadequate, the balance of convenience may favour an injunction until trial.

The claimants sought continuation until trial of an urgent anti-harassment injunction granted by Lewis J. The defendant opposed continuation, sought a stay to obtain further medical evidence, and sought disclosure orders. The claim arose from a disputed encounter followed by repeated emails, media approaches, online publications and allegations of serious criminal conduct against the claimants.

The central issues were whether the claimants were likely to establish harassment, whether any statutory defence was available, and whether the balance of convenience favoured continuing injunctive relief.

1. The application for continuation of the anti-harassment injunction was granted in principle until trial or further order. The defendant’s applications for a stay and disclosure were dismissed.
2. The court treated the claim as one in harassment alone. Under section 12 of the Human Rights Act 1998, the claimants had to show sufficiently favourable prospects of success to justify interim relief affecting freedom of expression. Articles 8 and 10 required balancing, with neither having presumptive priority.
3. Under the Protection from Harassment Act 1997, the relevant inquiry was whether the defendant had pursued a course of conduct which objectively amounted to harassment and whether she knew or ought to have known that it did so. The conduct had to be grave, oppressive and unacceptable.
4. The defendant’s concerted communications, media approaches, online publications and repeated allegations went well beyond annoyance and were likely to constitute harassment causing alarm or distress. Mental-health evidence did not provide a defence because the knowledge test was constructive and objective. The prevention-or-detection-of-crime and reasonableness defences failed.
5. The defendant was likely to continue the conduct if restrained relief ceased, and damages were inadequate. The balance of convenience favoured continuation of the injunction. Restrictions protecting confidential matters and limiting non-party access to later statements of case were also maintained.