Barkhuysen v Hamilton

An informant may be liable for false imprisonment where a report to the police goes beyond providing information and, in substance, procures the arrest. The court examines causation substantively rather than formalistically. Arrest and detention alone do not constitute a prosecution for the purposes of malicious prosecution. Slander imputing criminal conduct punishable by imprisonment is actionable without proof of special damage, even where the precise offence is not stated, provided the court is satisfied as to the criminal imputation. Harassment requires a course of conduct which is objectively oppressive and unacceptable, beyond ordinary irritation or upset. Police reports generally attract immunity from claims in defamation and harassment, although malicious prosecution is an exception.

The claimant and defendant were neighbours involved in a prolonged dispute. The claimant alleged that the defendant had maliciously reported a false sexual allegation to the police, causing his arrest and detention; had defamed him in conversations with two neighbours; and had harassed him through a series of incidents. The defendant counterclaimed for harassment based on alleged driving, surveillance, police-reporting and threats concerning her children.

The trial required findings on the truth of the allegations, the defendant’s responsibility for the claimant’s arrest, the meaning and actionability of the alleged slanders, the scope of statutory harassment and witness immunity, and the parties’ entitlement to damages and injunctions.

1. False imprisonment. The defendant’s report that the claimant had had sexual intercourse with a pig caused his arrest and detention. Although the police acted lawfully in making the arrest, the defendant was legally responsible because her report was not merely information on which the police could act as they saw fit. In substance, it urged and procured arrest. The test is one of causation and substance, not the presence of express words such as a request to arrest.
2. Malicious prosecution. The report was false, malicious and without reasonable and probable cause, and it procured the police investigation. However, the claimant had not been prosecuted. The established tort concerns malicious abuse of judicial power, and a mere arrest or police investigation falls short of prosecution. That claim was dismissed.
3. Slander. The defendant made statements to Mr Dowling and Mr Rowse imputing sexual misconduct involving animals and children. Such imputations were actionable without proof of special damage because they suggested offences punishable by imprisonment. It was unnecessary for the offence to be specified in the words themselves. The claimant failed only where the evidence did not establish the precise defamatory words sufficiently.
4. Harassment. The defendant’s conduct, viewed cumulatively, amounted to a course of conduct which was oppressive and unacceptable. The statutory defence of reasonableness was unavailable. Reports to the police which were immune from suit could not be included in the course of conduct or used to aggravate damages, though they could be considered for credibility.
5. The defendant’s counterclaim failed because the alleged driving, watching, admonishment and threats were not proved. Judgment was entered for the claimant for £32,080, comprising damages for false imprisonment, slander and harassment. Injunctions were ordered in principle, with their precise terms to be determined. The malicious prosecution claim and counterclaim were dismissed.

First-instance trial judgment. No appellate history was stated in the judgment.