Hayes v Butters & Ors

A harassment claim under the Protection from Harassment Act 1997 may be a hybrid claim for insolvency purposes. A claim confined to distress and anxiety is personal, but financial loss makes the claim capable of vesting in the trustee in bankruptcy under the principle in Ord v Upton. Each further wrongful act forming part of a continuing course of conduct gives rise to a fresh cause of action where it causes fresh damage. A pre-bankruptcy claim may therefore vest in the trustee, while a post-bankruptcy continuation remains with the bankrupt. An injunction claim is separately available to the victim and is not vested in the trustee. The court should not strike out the whole claim where the facts and the operation of statutory defences remain unresolved.

The claimant brought proceedings against his former wife and her partner under the Protection from Harassment Act 1997, seeking an injunction and damages for distress, anxiety, physical and psychological effects, and alleged financial loss. The alleged campaign began before his bankruptcy in March 2005 and continued afterwards.

The claimant’s trustee in bankruptcy was joined as a defendant and applied to strike out the claim, arguing that the damages claim was a hybrid claim which had vested in him. Earlier applications by the alleged harassers to strike out the proceedings on similar grounds had failed. The central issues were whether the claim vested wholly in the trustee, whether a continuing course of conduct could generate fresh causes of action after bankruptcy, and whether the proceedings were an abuse of process.

1. Application dismissed. The trustee could not establish that the entire damages claim vested in him, and the claim was not an abuse of process. The litigation was to be retransferred to the county court for trial on liability.
2. Under sections 1, 3 and 7 of the Protection from Harassment Act 1997, a damages claim requires at least two acts forming a course of conduct amounting to harassment, a breach of section 1(1), and loss caused by that breach. An injunction rests on an actual or apprehended future breach and is technically a separate cause of action from damages.
3. The statutory claim is not invariably personal. Where the only loss is distress or anxiety, it remains personal to the bankrupt. Where financial loss is also claimed, it is a hybrid claim and falls within the rule in Ord v Upton, so far as the relevant cause of action accrued before bankruptcy.
4. A course of conduct is not one indivisible cause of action for all time. Once two or more wrongful acts have caused loss, the cause of action is complete. Each later act which continues the course of conduct, is wrongful and unjustifiable, and causes fresh damage gives rise to a fresh cause of action. A pre-bankruptcy claim may therefore vest in the trustee, while a post-bankruptcy claim remains with the bankrupt.
5. The claimant need not plead each post-bankruptcy claim as a separate course of conduct. A pleaded campaign may support proof of such incidents as establish a wrongful course of conduct and fresh damage. The question could not properly be determined summarily because the statutory justifications might apply during some periods but not others.
6. Pickthall v Hill Dickinson was distinguishable. The claimant had not knowingly issued proceedings in respect of a cause of action vested in another, and he retained claims for an injunction and for post-bankruptcy acts causing loss. The trustee’s alleged lack of involvement or the possible merger of a judgment did not justify striking out the claim.

This was a first-instance application in the High Court. The judgment records earlier unsuccessful applications and appeals concerning the same proceedings, including refusal of permission to appeal by the county court and High Court, but no appeal from this judgment is stated.