Warby J identified the three issues on which the claimant bore the burden of proof in relation to each defendant on a claim of harassment as: (1) Did the defendant engage in a course of conduct? (2) Did any such course of conduct amount to harassment? and (3) Did the defendant know, or should the defendant have known, that the conduct amounted to harassment? In addition (see [5] and [6]), that case involved an assessment of the merits of the defences that any course of conduct did not amount to harassment because it was (i) pursued for the purpose of preventing or detecting crime and/or (ii) in the particular circumstances, reasonable.
Warby J said: ‘There must, therefore, be conduct on at least two occasions which is, from an objective standpoint, calculated to cause alarm or distress and oppressive, and unacceptable to such a degree that it would sustain criminal liability: see Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) [142] (Simon J).
The reference to an ‘objective standpoint’ is important, not least when it comes to cases such as the present, where the complaint is of harassment by publication. In any such case the Court must be alive to the fact that the claim engages Article 10 of the Convention and, as a result, the Court’s duties under ss 2, 3, 6 and 12 of the Human Rights Act 1998. The statute must be interpreted and applied compatibly with the right to freedom of expression, which must be given its due importance. As Tugendhat J observed in Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB) at [267] ‘[i]t would be a serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted’ . .
In general it may be better to evaluate a given factual scenario in its totality, before reaching a conclusion on whether it amounts to harassment. But in this case I have no difficulty dealing, in isolation, with the question of whether it has been proved that the defendants’ conduct actually caused alarm or distress, or other emotions or impacts consistent with it amounting to harassment. To do so involves picking out for separate consideration the question of whether the claimant has proved the harm which is plainly an element of the tort. As Lord Phillips said in Thomas . . : ‘It seems to me that section 7 [(2)] is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.’ On the facts of this case at least I see no great difficulty, either, in dealing in isolation with the objective aspect of the same question, namely whether the defendants’ conduct was calculated or likely to produce alarm or distress. I can also reach a conclusion on whether the conduct reached the necessary level of gravity or, put another way, whether it was objectively oppressive, having regard to the subject-matter, the claimant’s status, personality, and the other objective circumstances relied on.
But it seems to me that the question of subjective intention belongs in a different category, and is difficult to assess fairly other than in the context of the twin defences of legitimate purpose and reasonableness that are advanced in reliance on s 1(3). It seems reasonable to conclude that conduct which causes distress but might otherwise be fair and reasonable may in fact be unreasonable, if it is engaged in for an illegitimate purpose, or with malign intent. An example was given by Counsel in Thomas: ‘ . . the editor who uses his newspaper to conduct a campaign of vilification against a lover with whom he has broken off a relationship’ (see [36]). This approach would seem consistent with the requirement of the Strasbourg jurisprudence that the right to freedom of expression should be exercised in good faith. Similar reasoning applies to the defendants’ further contention that I should find against Mr Hourani on this issue because ‘For many years he benefitted to an extraordinary degree from his close connections to [Aliyev] and the elite of the Kazakh State. As a result he was able to accumulate vast wealth.’ These are disputed allegations, the truth or falsity of which cannot affect the question of whether the offending acts were likely to or did cause harm, or whether they were objectively oppressive.’
As to the use of hearsay evidence, Warby stated as a general proposition: ‘that it is unsatisfactory to introduce important evidence by means of selective extracts from hearsay written statements.’
Warby J
[2017] EWHC 432 (QB)
Bailii
England and Wales
Citing:
See Also – Hourani v Thomson and Others QBD 20-Jan-2017
. .
See Also – Hourani v Thomson and Others QBD 6-Feb-2017
Applications for inspection of documents in claim for defamation and harassment. . .
Cited by:
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
Cited – Hijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.581312