Farid Alizadeh Ghenavat & Ors v Simon Henry Lyons

A harassment claim may properly concern the manner, persistence and impact of communications, even where some communications contain defamatory allegations. The court must assess the course of conduct as a whole, rather than deconstructing individual acts. Harassment is judged objectively and requires conduct that is oppressive and unacceptable. Where speech engages Articles 8 and 10, the court must apply an intense, proportionate balancing exercise. A legitimate grievance may justify robust language and appropriate contact with relevant third parties, but not a prolonged, escalating campaign involving personal attacks, deception, family and professional contacts, or conduct objectively likely to cause alarm and distress.

The claimants sought permanent injunctive relief under section 3A of the Protection from Harassment Act 1997. They alleged that the defendant, their former business associate, had pursued them over approximately eighteen months through hundreds of communications, bogus email domains, alleged impersonation, threats, attacks on family members and professional advisers, and communications to clients, banks, regulators and the media.

The defendant accepted sending most communications but relied on the context of a serious commercial dispute and contended that the claim was in substance one of defamation. The court had to determine whether the conduct amounted to harassment, whether the statutory reasonableness defence applied, and what relief was proportionate.

1. Claim succeeded. The defendant had pursued a course of conduct against each claimant which amounted to harassment. The communications, bogus accounts, misleading company communications, attacks on relatives and advisers, and related conduct were assessed cumulatively. Conduct need not be directed exclusively at a claimant if it was foreseeably likely to cause that claimant direct harm: Levi v Bates [2015] EWCA Civ 206.
2. Harassment concerns the quality of the course of conduct as a whole. Individual messages which might appear to be business disagreement, negotiation or vulgarity in isolation may form part of oppressive and unacceptable conduct when viewed in context: Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123. The conduct was objectively judged: Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB).
3. The proceedings were properly brought in harassment rather than defamation. The central complaint was the relentless and escalating manner of publication and the impact of the overall campaign, and some conduct, such as creating false domains, was not publication at all. This was consistent with the distinction discussed in Khan v Khan [2018] EWHC 241 (QB).
4. The defendant’s legitimate commercial grievance could justify a robust response, including some vulgar language and appropriate communications with relevant advisers, clients and bankers. It did not justify the campaign actually pursued. The course of conduct was objectively likely to cause alarm and considerable distress and did cause such harm.
5. The reasonableness defence under section 1(3)(c) was objective and had to be assessed in the circumstances existing when the conduct occurred, with due weight given to Articles 8 and 10: R v C (Sean Peter) [2001] EWCA Crim 12151, Hayes v Willoughby [2013] UKSC 17 and Hourani v Thomson [2017] EWHC 432. Truth was not itself a defence, although the truth or falsity of allegations could be relevant to the proportionality and reasonableness assessment.
6. The court granted an injunction in substantially the proposed form, subject to removing law and accountancy firms from the protected list. The order prohibited harassment and regulated communications referring to the claimants with specified persons and organisations, while preserving lawful disclosures and allowing communications through solicitors. The court considered this more proportionate than attempting to define every statement which could or could not be made.