Gerrard & Anor v Eurasian Natural Resources Corporation Ltd & Anor

On an opposed strike-out or amendment application, the court should determine a short legal point summarily only where the necessary material is available. In an area of developing harassment jurisprudence, disputed issues should ordinarily be resolved on findings at trial.

Harassment under the Protection from Harassment Act 1997 is genuinely offensive and unacceptable conduct of sufficient gravity to sustain criminal liability. It is not necessary that alarm or distress is actually caused or foreseeable. Covert surveillance is not immune from the Act merely because it was intended to remain undiscovered. Surveillance and litigation correspondence may, depending on the facts, form part of a harassing course of conduct. The claims and amendments therefore had a real prospect of success.

The claimants brought proceedings alleging data-protection breaches, misuse of private information, harassment and trespass arising from surveillance by ENRC and Diligence. The defendants asserted that the surveillance was undertaken for the purposes of existing or contemplated litigation and that resulting material was protected by litigation privilege.

The applications concerned strike-out of the harassment claim and parts of the Reply, permission to amend the harassment case, and costs. The central issues were whether covert surveillance and solicitor’s correspondence could in principle constitute harassment, and whether the claimants’ pleaded allegations concerning criminality, iniquity and confidentiality were suitable for summary determination before disclosure and trial.

1. Applications. The Amendment Application was allowed. The Strike Out Applications were dismissed. The Costs Applications were deferred.
2. Summary determination. The governing question was whether the pleaded case had a realistic prospect of success, or whether it was certain to disclose no reasonable grounds. The court should not conduct a mini-trial. Where factual investigation may affect the outcome, the issue should ordinarily be determined at trial. That approach applied with particular force to developing harassment and privilege issues.
3. Harassment. The binding reasoning in Majrowski v Guy’s and St Thomas’ NHS Trust established that harassment is genuinely offensive and unacceptable conduct of gravity sufficient to sustain criminal liability. The mental element is satisfied where the defendant knows, or a reasonable person with the same information would think, that the course of conduct amounts to harassment. Actual alarm or distress, or its foreseeability, is not essential.
4. The statutory concept should not be supplemented by an additional requirement that the defendant subjectively intended to alarm or distress the victim. Although Thomas v News Group Newspapers Ltd, followed in R v Haque and Plavelil v Director of Public Prosecutions, used the expression calculated to produce alarm or distress, the authorities contained material inconsistencies. The preferable analysis treated calculated, where relevant, in an objective sense as likely to produce a result, while leaving the precise meaning of likely open.
5. Covert surveillance could form part of harassment even if the perpetrator intended it not to be discovered. The stalking provisions, which expressly include monitoring electronic communications and watching or spying, would provide materially reduced protection if concealed conduct were automatically excluded. Once the victim learned of objectively harassing conduct, the perpetrator’s hope or intention that it would remain undiscovered was no answer. The pleaded surveillance therefore had a real prospect of satisfying the statutory requirements.
6. The court rejected the submission that solicitor-to-solicitor correspondence during litigation was incapable in principle of amounting to harassment. Iqbal v Dean Manson Solicitors showed that litigation correspondence could be capable of constituting a harassing course of conduct. The context and statutory defences remained important, but no blanket immunity or malice requirement followed from Articles 6, 8 or 10 ECHR.
7. Surveillance could be lawful and admissible in one case but impermissible in another. The balance between privacy, litigation objectives and other rights was fact-sensitive. Authorities including Jones v University of Warwick, Imerman v Imerman and Köpke v Germany did not justify striking out the claim.
8. Litigation privilege. The privilege issues were premature. They should be considered after disclosure, by reference to specific documents or classes of documents, specific privilege claims, and any challenges to those claims. The pleaded allegations of harassment, foreign criminality, dishonest representations and the possible application of the iniquity exception were not hopeless. Following Dubai Aluminium v Al-Alawi, documents generated by or reporting on criminal or fraudulent conduct undertaken to acquire evidence for litigation may fall outside legal professional privilege. Whether particular documents were causally connected with alleged iniquity, confidential, or sufficiently connected with litigation required factual determination.

First-instance decision. The judgment records no prior appellate decision in this litigation.