James Fish v Terry Barker

An interim harassment injunction may restrain contact, attendance and publication where the evidence shows a course of conduct crossing the boundary from the regrettable to the unacceptable and likely to cause serious alarm, distress or fear. The court must independently apply the statutory framework even where the defendant consents. Section 12 of the Human Rights Act 1998 requires particular regard to freedom of expression and, before trial, a likelihood that publication should not be allowed. The injunction must be necessary, proportionate and clear. A broad prohibition on comment may be justified where the conduct is personal, abusive and unrelated to any legitimate business relationship. A return date remains an important safeguard for an unrepresented defendant. Costs of an interim application should ordinarily be reserved where the substantive merits have not been determined.

The claimant sought an interim injunction in proceedings alleging malicious falsehood and harassment under the Protection from Harassment Act 1997. The interim application proceeded solely on harassment. The defendant had made threats, sent an intimidating text message and published abusive LinkedIn comments concerning the claimant, his business interests and associates. He later deleted the posts, apologised and consented to an injunction, but opposed an order for costs.

The court considered whether notice was sufficient, whether interim relief affecting freedom of expression was justified, whether the order remained necessary despite the defendant’s assurances, how broadly the prohibition should be framed, whether a return date should be retained, and who should bear the costs.

1. Outcome. An interim injunction was granted under the Protection from Harassment Act 1997 and CPR Part 25. It prohibited contact with the claimant or his family, approaching or attending relevant addresses, and social-media contact, communication or comment concerning the claimant, his business interests or associates. A return hearing was fixed for 12 April 2021. Costs were reserved.
2. Notice and freedom of expression. Although clear three-day notice under CPR 23.7(1)(b) had not been given, the defendant had received sufficient informal notice for CPR 23.7(4). The court independently considered the statutory framework notwithstanding the defendant’s consent. Under section 12 of the Human Rights Act 1998, particular regard was required to freedom of expression, and the claimant had to show that he was likely to establish at trial that publication should not be allowed.
3. Harassment. Applying the approach in Davies v Carter [2020] EWHC 2674 (QB), the claimant was likely to establish conduct on at least two occasions which objectively caused alarm or distress and was oppressive and unacceptable to a degree capable of sustaining criminal liability. The threats of violence, later social-media attacks, change of forum, third-party publication, persistence after a three-week interval, and evidence of serious impact together established a serious and continuing risk. No defence under section 1(3) was likely to succeed.
4. Necessity, proportionality and clarity. The injunction was not a reputation-based attempt to circumvent the stricter defamation test. Because the comments were personal, abusive and unrelated to any business relationship, it was proportionate at the interim stage to prohibit any comment about the claimant, his business interests or associates. Adding adjectives such as “abusive” would risk vagueness; the prohibition needed clarity as well as proportionality.
5. Return date and costs. The defendant’s assurances did not remove the need for a return date. It was an important safeguard for a litigant in person who had received informal notice. Applying the approach in First Global Locums Ltd v Cosias [2005] EWHC 1147 (QB), the court regarded the defendant’s conduct and apparent propensity for renewed escalation as supporting continued protection. The interim assessment of likely success did not determine the substantive merits. Following Picnic at Ascot v Kalus Derigs [2001] FSR 2 and Wingfield Digby v Mountford Capital Partners (Holdings) LLP [2020] Costs LR 1759, there were no special factors justifying an immediate costs order.