Calland v Financial Conduct Authority

Conduct constitutes harassment under the Protection from Harassment Act 1997 only when, viewed objectively and in context, it passes beyond the unattractive or unreasonable and becomes seriously oppressive and unacceptable. Its gravity must justify the sanctions of the criminal law. Ordinary annoyance, disagreement, requests for information and communications which are not targeted at the claimant do not meet that threshold.

On an application for summary judgment, disputed factual or legal questions do not prevent the court from critically assessing the claim. The court must consider the evidence as a whole and may dispose of a claim where, even assuming disputed matters in the claimant’s favour, it has no real prospect of success.

The appellant alleged that a letter, a telephone conversation and an email sent by the financial services regulator during inquiries concerning pension mis-selling amounted to harassment under the Protection from Harassment Act 1997. The regulator sought information about his ability to meet possible investor claims so that it could determine whether the compensation scheme should investigate them.

A deputy district judge refused the regulator’s application for summary judgment. On appeal, Recorder Steynor QC granted summary judgment. With permission, the appellant brought a second appeal to the Court of Appeal.

The central issues were whether the communications were capable of crossing the statutory threshold of harassment and whether the Recorder had been entitled to assess the claim’s prospects without a trial.

1. The appeal was dismissed unanimously. The communications, individually and cumulatively, came nowhere near the threshold for harassment under the Protection from Harassment Act 1997. Lewison LJ gave the judgment, with which Bean and Laws LJJ agreed.

2. Harassment begins where conduct ceases to be merely unattractive or unreasonable and becomes oppressive and unacceptable. It involves persistent conduct of a seriously oppressive nature, targeted at an individual and objectively capable of causing fear or distress. Context is important, but the touchstone is whether the conduct is sufficiently grave to justify the sanctions of the criminal law. The assessment is objective.

3. The regulator’s letter sought financial information and cooperation so that responsibility for investigating possible investor claims could be identified. Its reference to redress being due was unfortunate because liability had not been established. Read as a whole, however, the letter neither asserted coercive power nor approached oppressive conduct.

4. The telephone conversation was initiated at the appellant’s invitation. Although the regulator’s employee inaccurately referred to pensions having been mis-sold rather than allegedly mis-sold, he clarified that no conclusion had been reached, invited representations and offered access to the relevant files. The discussion was a robust but polite disagreement, not torment or oppression. The email merely explained the regulator’s proposed next steps. Communications to consumers and the Ombudsman were not targeted at the appellant and could not sustain his harassment claim.

5. A judge considering summary judgment must assess whether the claimant has a real prospect of success. The prohibition on conducting a mini-trial does not require the court to accept factual assertions without analysis. Even if every disputed factual and legal issue identified by the deputy district judge were resolved in the appellant’s favour, the communications could not become harassment. The Recorder was therefore entitled to make his own assessment and enter summary judgment.

6. Because the conduct did not constitute harassment, it was unnecessary to determine whether the regulator could establish either statutory defence under section 1(3). The unexplained nine-month delay in delivering the Recorder’s judgment was unacceptable, but did not affect the disposition.

1. Court of Appeal (Civil Division): The appellant’s second appeal was dismissed unanimously. The Recorder’s grant of summary judgment was upheld: [2015] EWCA Civ 192.

2. Bow County Court, Recorder Steynor QC: The regulator’s appeal was allowed and summary judgment was entered against the appellant.

3. Bow County Court, Deputy District Judge Rea: The regulator’s application for summary judgment was refused.