Merlin Entertainments LPC & Ors v Cave

The Protection from Harassment Act 1997 requires conduct sufficiently serious to found criminal liability. Ordinary criticism, annoyance, upset or unreasonable conduct does not necessarily amount to harassment. The court must assess the conduct affecting each individual separately. Mass emails are not harassment merely because they are numerous; additional oppressive content or persistence is required. Where alleged harassment consists of statements which the defendant will seek to justify, Bonnard v Perryman is not an absolute bar to interim relief, but the court must distinguish the statements’ content from any oppressive mode of delivery. Section 12(3) of the Human Rights Act 1998 requires the usual higher threshold for relief affecting article 10 rights. The application failed because the evidence did not show a serious issue to be tried, still less probable success.

The claimants, four theme-park companies and their chief executive, sought an interim injunction against Dr Cave. They alleged that his websites, mass emails, letters and other communications about theme-park safety harassed their officers, employees and agents, and Mr Varney personally. Dr Cave relied on freedom of expression and contended that his communications were, or might be, justified at trial.

The application followed earlier unsuccessful proceedings concerning a condition survey of Chessington World of Adventures, including an application for injunctive relief before Sharp J. The central issues were whether that decision created an estoppel, what amounted to harassment under the Protection from Harassment Act 1997, whether potentially defamatory communications could also constitute harassment, and what interim-injunction test applied.

1. Estoppel. Sharp J’s refusal of an interlocutory injunction was not a final decision creating an issue estoppel. Her factual findings were based on the evidence before her, and she did not decide that Dr Cave lacked standing to campaign about safety or that his statements could not be justified.
2. Harassment. Under the Protection from Harassment Act 1997, harassment is an ordinary English concept. The conduct must be sufficiently serious to found criminal liability and must cross the line from ordinary irritations into oppressive and unacceptable conduct. Mere unreasonableness, unattractiveness, regret or upset is insufficient. Fear of violence is not required.
3. The court must assess the course of conduct affecting each individual. The corporate claimants could not aggregate conduct directed at different people. Direct harassment of a company was not actionable under section 1(1), although section 1(1A) afforded limited protection where employees were harassed to exert pressure on a company. That provision was not pleaded.
4. Article 10 and defamation. Bonnard v Perryman was not a complete answer where the conduct included distinct elements of oppression, persistence or unpleasantness. The court had to scrutinise the claim carefully and grant no more relief than was absolutely necessary. The genuineness of the campaigner’s concerns was not irrelevant.
5. Interim relief. Section 12(3) of the Human Rights Act 1998 applied. The court should be exceedingly slow to restrain publication unless the applicant showed probable success at trial. No special circumstances justified a lower threshold.
6. The mass emails, criticism of named individuals, website, letters before claim and other communications did not arguably cross the applicable line. Their cumulative effect did not establish actionable harassment. The application for an interim injunction therefore failed.