Ferguson v British Gas Trading Ltd: CA 10 Feb 2009

Harassment to Criminal Level needed to Convict

The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed against a refusal to strike out the claim of harassment.
Held: The appeal failed. The court considered her claim of harassment, and what level of seriousness was sufficient to come within the Act.
Jacob LJ said ‘British Gas says it has done nothing wrong; that it is perfectly all right for it to treat consumers in this way, at least if it is all just done by computer.’ and ‘I accept that the course of conduct must be grave before the offence or tort of harassment is proved . . It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognise, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene . . I am quite unable to conclude that the impugned conduct is incapable of satisfying the test. On the contrary I think, at the very least, that it is strongly arguable that it does. I ask myself whether a jury or bench of magistrates could reasonably conclude that the persistent and continued conduct here pleaded was on the wrong side of the line, as amounting to ‘oppressive and unacceptable conduct’. I am bound to say that I think they could.’
British Gas had ‘sought to downgrade it by saying that Ms Ferguson knew the claims and threats were unjustified. That is absurd: a victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all.
Mr Porter also made the point that the correspondence was computer generated and so, for some reason which I do not really follow, Ms Ferguson should not have taken it as seriously as if it had come from an individual. But real people are responsible for programming and entering material into the computer. It is British Gas’s system which, at the very least, allowed the impugned conduct to happen.
Moreover the threats and demands were to be read by a real person, not by a computer. A real person is likely to suffer real anxiety and distress if threatened in the way which Ms Ferguson was. And a real person is unlikely to take comfort from knowing that the claims and threats are unjustified or that they were sent by a computer system: that will not necessarily allay the fear that the threats will not be carried out. ‘

Jacob LJ, Sedley LJ, Lloyd LJ
[2009] EWCA Civ 46, [2009] 3 All ER 304, [2010] 1 WLR 785
Protection from Harassment Act 1997 1
England and Wales
CitedLennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
CitedTesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
CitedAllen v London Borough of Southwark CA 12-Nov-2008
The claimant appealed against a strike out of his claim for harrassment after being subjected to five sets of possession proceedings by the defendant, each of which relied upon the same bad point.
Held: The Court refused to strike out a claim . .
CitedEssendon Engineering v Maile 1982
. .
CitedDirector General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2) HL 25-Nov-1994
The actions of company employees, acting in the course of their employment and in contempt may put the company employer in contempt also, and even though the company may have given explicit instructions that no infringing agreement should be entered . .
CitedConn v Sunderland CA 7-Nov-2007
The claimant said that he had been harassed by the respondent through an employee.
Held: Under the 1997 Act, the behaviour had to go beyond the regrettable to the unacceptable, and would be of such gravity as would sustain criminal liability . .
CitedRegina v British Steel Plc CACD 31-Dec-1994
British Steel employed two sub-contractors to work in moving a steel tower under their supervision. One platform fell on one of the sub-contractors, killing him. British Steel claimed they had delegated their responsibilities under the Act, and were . .
CitedCambridgeshire County Council v Kama Admn 21-Nov-2006
. .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedMeridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .

Cited by:
CitedVeakins v Kier Islington Ltd CA 2-Dec-2009
The claimant alleged that her manager at work had harassed her. The court, applying Conn, had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.
Held: The claimant’s . .
CitedRayment v Ministry of Defence QBD 18-Feb-2010
The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up . .
CitedCalland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
CitedGerrard 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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.282601