Rushton v Tompkins & Anor (Rev 1)

Freedom of expression is not an absolute answer to a claim of harassment. Article 10 must be considered with Article 8, and Parliament may restrict speech to protect others from harassment under the Protection against Harassment Act. Communications need not incite violence or other criminal conduct to amount to harassment. The assessment is cumulative: content, quantity, personal abuse, threats and remorseless persistence may turn a legitimate grievance into abuse. In a Part 8 claim, admissible hearsay may establish distress, and absence of cross-examination is not fatal where no application for it was made. Current and former employees may be represented together where they share the same interest.

Mr Rushton, a member of the Royal Institution of Chartered Surveyors, conducted a prolonged email and social-media campaign alleging dishonesty, corruption and conspiracy against the RICS and its current and former personnel. On 13 March 2017, May J found that the campaign amounted to harassment and granted an injunction.

Mr Rushton sought permission to appeal, relying principally on freedom of expression and challenging the evidence of alarm and distress, the use of the Part 8 procedure without cross-examination, the position of former employees, and the representation order. The central issue was whether the injunction and the scope of the protected class were legally sustainable.

Permission to appeal refused. Lewison LJ held that the proposed appeal had no prospect of success.

1. Freedom of speech was not an automatic answer to a harassment claim merely because the communications did not incite violence or other criminal conduct. The qualification to the free-speech principle identified in R v Central Independent Television operated outside statutory exceptions. Article 10 had to be considered with Article 8, and Parliament had enacted the Protection against Harassment Act. The court referred to Thomas v News Group Newspapers [2001] EWCA Civ 1233, Ferguson v British Gas Ltd [2009] EWCA Civ 46 and Roberts v Bank of Scotland [2013] EWCA 882 as examples showing that speech falling short of criminal incitement may still constitute harassment.
2. Whether conduct crosses the boundary into harassment is assessed cumulatively. Relevant considerations include the content and quantity of the communications, personal abuse, wild allegations and the quality of their persistence. Conduct beginning as a legitimate enquiry or grievance may become harassment through unacceptable, remorseless repetition. The first-instance judge’s direction was unexceptionable, and the communications were capable of amounting to harassment: DPP v Hardy [2011] EWHC 2874 was consistent with that approach.
3. The court left open whether proof that alarm or distress had actually been caused was legally required. It observed that the Act did not impose that requirement in its terms, but the issue did not need to be decided because the judge had found distress and alarm proved. The judge was entitled to accept the CEO’s evidence, including second-hand hearsay, in a civil trial. Since no objection had been made to the Part 8 procedure and no application for cross-examination or an adjournment had been made, she was entitled to proceed without cross-examination. The court considered Majrowski and Guy’s and Thomas’s NHS Trust [2006] UKHL 34 and Hayes v Willoughby [2013] UKSC 17 in addressing this issue.
4. The clean-hands objection could not defeat the injunction. The equitable maxim applies only where the alleged lack of propriety goes to the heart of the equitable relief sought. The fact that some protected persons were former employees did not meet that threshold. Under the Civil Procedure Rules, Part 19.6, current and former employees affected by the same campaign had the same interest, so the RICS could bring proceedings on behalf of both groups.

The remaining grounds added nothing of substance. Permission to appeal was refused.

1. Court of Appeal (Civil Division): On 26 October 2017, Lewison LJ refused permission to appeal because the proposed appeal had no prospect of success: [2017] EWCA Civ 1995.
2. High Court: On 13 March 2017, May J found that the campaign amounted to harassment and granted an injunction.