ALBERT COURT (WESTMINSTER) MANAGEMENT COMPANY LTD & Ors v MARCEL NASSER FETAIMIA & Anor

Harassment under the Protection from Harassment Act 1997 is assessed by considering the course of conduct as a whole. Individual incidents need not each amount to a criminal offence. The conduct must cross the criminal liability threshold and be persistent, deliberate, unreasonable and oppressive, targeted at another person, and calculated to cause alarm, fear or distress. An injunction may restrain an actual or apprehended breach and may protect a defined class of persons. Legitimate complaints remain permissible, but the manner in which complaints are pursued may itself constitute harassment. In a civil fact-finding exercise, the burden remains on the party asserting the facts and the standard is the balance of probabilities. The court must assess the evidence globally, giving proper regard to credibility, reliability, contemporary documents and the fallibility of memory.

The claimants, including a management company, its directors, employees and contractors, sought final injunctions under the Protection from Harassment Act 1997. They alleged that the defendants had pursued a prolonged course of threatening, abusive, intimidating and intrusive conduct, including allegations of fraud, confrontational approaches, demands for private information, covert recordings and attempts to influence witnesses.

The defendants denied most allegations or accepted the underlying conduct while maintaining that it represented legitimate complaints about the management of Albert Court. The central issues were whether the alleged conduct amounted to harassment, whether the statutory defences applied, and whether injunctive relief should be granted.

1. Harassment. The statutory test was the criminal liability threshold identified in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34. The court assessed the course of conduct cumulatively. Each incident did not need to constitute a separate criminal offence. The description in Hayes v Willoughby [2013] UKSC 17 was adopted as a useful formulation of the statutory concept.
2. The court found that the defendants had engaged in a sustained course of threatening, abusive, intimidating and intrusive conduct directed at the claimants and protected persons. The conduct was known, or ought reasonably to have been known, to amount to harassment. The letter sent on 30 January 2020, considered alone and in context, was the sole allegation not shown to satisfy that threshold.
3. The court applied the guidance in Re BR (Proof of Facts) [2015] EWFC 41 and Re A (A Child) (Fact-finding Hearing: Speculation) [2011] EWCA Civ 12. The claimants bore the burden of proof, the standard was the balance of probabilities, and findings had to rest on evidence rather than speculation. The evidence was assessed as a whole, consistently with Re T [2004] 2 FLR 838.
4. In assessing witnesses, the court considered contemporary documents and the limitations of memory, applying the reasoning in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560. A mistake in recollection did not, without more, establish dishonesty. The court also applied the guidance in R v Lucas [1981] QB 720 that a witness who lies on one matter need not have lied about everything.
5. An injunction could be granted for an actual or apprehended breach. Following EDO MBM Technology Ltd v Campaign to Smash EDO [2005] EWHC 837 (QB), an apprehended breach did not require multiple occasions. The court could frame protection for a class of persons and did not require individual consent, consistent with University of Oxford v Broughton [2004] EWHC 2543 and Law Society v Kordowski [2011] EWHC 3185 (QB).
6. The claimants were entitled to an injunction in the terms of Annex 2. The order did not prevent legitimate complaints through proper channels, but regulated threatening, abusive, intrusive and otherwise harassing conduct. The claimants were the winning parties; costs were reserved for submissions.