Foot Anstey LLP & Anor v Sean Stimson

On an application for an interim injunction under the Protection from Harassment Act 1997, the court may proceed in a respondent’s absence where there was proper notice and the evidence does not justify an adjournment. The statutory knowledge test is objective. A course of conduct must pass a seriousness threshold: it must be oppressive and unacceptable, or fairly severe, rather than mere annoyance or irritation. Where the relief may affect freedom of expression, Human Rights Act 1998, section 12(3), requires the applicant to show that it is more likely than not that publication should not be allowed. Relief should be carefully framed so that legitimate communications and regulatory or law-enforcement disclosures remain possible.

The Applicants, a law firm and its associated company, sought an interim injunction under section 3A of the Protection from Harassment Act 1997. They alleged that the Respondent had pursued a course of conduct involving threats, abusive communications, suspected computer misuse, misleading domain names and offensive telephone calls directed at staff and charity clients involved in a probate dispute.

The Respondent had notice of the hearing but did not attend or apply to adjourn. The court considered whether to proceed in his absence, whether the alleged conduct was likely to establish harassment of two or more persons intended to influence the Applicants’ conduct, and the applicable interim-relief threshold, statutory defences, proportionality and balance of convenience.

1. Proceeding in the Respondent’s absence. The court proceeded under CPR 23.11 because the Respondent had proper notice, had engaged with the issues in correspondence, deliberately chose not to attend, and had neither applied to adjourn nor supplied supporting evidence of medical or logistical difficulties. The two-stage approach in Pirtek (UK) Limited v Robert Jackson was applied.
2. Harassment. The court was satisfied that it was more likely than not that the Applicants would establish a course of conduct involving harassment of two or more persons, pursued with the purpose specified in section 1(1A)(c) of the PHA. The knowledge test under section 1(2) is objective. The conduct passed the seriousness threshold identified in Majrowski v Guy’s and St Thomas’ NHS Trust and Shakil-Ur-Rahman v ARY Network Limited.
3. Interim injunction test. The ordinary American Cyanamid v Ethicon & Co principles applied to relief not affecting freedom of expression. For relief which might affect that right, section 12(3) of the HRA required the Applicants to show that publication should not be allowed was more likely than not, as explained in Khan v Khan. The court applied that higher threshold to the whole application.
4. The potential defences under section 1(3)(a) and (c) were not realistically available. The conduct was not reasonably pursued in the particular circumstances and was not shown to be for the purpose of preventing or detecting crime.
5. The injunction was proportionate and confined to specified attendance, abusive or threatening communications, computer misuse, misleading domain names and procuring others to engage in that conduct. It preserved appropriate communications about the probate dispute and disclosures to law-enforcement agencies, regulators or as required by law. Damages were inadequate, the cross-undertaking protected the Respondent, and the balance of convenience favoured relief. An undertaking to issue a claim for a permanent injunction within 28 days was included. Costs were reserved.