Harassment by letter-writing

Are letters capable of amounting to a course of conduct amounting to harassment?

In certain circumstances, yes, according to the Court of Appeal in Iqbal v Dean Manson [2011] EWCA Civ 123.

The case concerned a claim for harassment by a solicitor against the defendant, a firm of solicitors by whom the claimant was once employed.  The alleged harassment consisted of three letters sent to the claimant, two of which were copied to the Leeds county court.  The letters concerned a dispute between the parties about the claimant's representation of a client connected to previous clients of the defendant.

The first letter raised questions about the claimant's professional integrity and the circumstances in which he had ceased to be employed by the defendant.  The second letter accused him of a serious conflict of interest and alleged he had been summarily dismissed for 'insubordination and reckless conduct'.  The third letter accused the claimant of misleading the Law Society and of illegal conduct unbefitting a solicitor.

Section 1 of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment.  "Harassment" is not further defined, but s 7(2) says it includes "alarming the person or causing the person distress" and a "course of conduct" is described in s 7(3) as necessarily involving "in relation to a single person ... conduct on at least two occasions in relation to that person".

The Croydon county court struck out the claim for harassment.  On appeal to the High Court, Teare J held that the first two letters could not be said to be "oppressive and unreasonable" (Lord Phillips's test in Thomas v News Group Newspapers [2001] EWHC 1233).  Although the judge held that the third letter was arguably capable of being described as harassing, it "was only one instance and so does not form a course of conduct".

The Court of Appeal allowed the claimant's appeal against the order striking out his claim.  The Court of Appeal's judgment provides a useful review of the law and is particularly helpful on the issues of what constitute harassment and a course of conduct.

First, the court decided that each of the three letters by themselves was capable of being described as harassing.  The test of harassment as set out in Thomas was "conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable".

In examining the letters, the court found that the first letter could arguably be understood as an attempt to get the claimant to stand down as the client's solicitor or else face unpleasant consequences.  The second and third letters were considered even more serious.  In the judgment of the court, the three letters "particularly when viewed in the light of each other ... arguably amount to a deliberate attack on the professional and personal integrity of [the claimant], in an attempt to pressurise him, by his exposure to his client and/or the court, into declining to act for [the client] or else into advising [the client] to meet the demands of [the defendant]".  As such, they evidenced a campaign of harassment against the claimant.

The court accepted that the correspondence had arisen in the context of litigation and that it would be "rare indeed" that complaints between lawyers in such a context would go so far as to amount to harassment, but in this case, the defendant had gone too far: the letters had deliberately and wrongfully attacked a professional man's integrity, were capable of causing alarm and distress and were oppressive and unreasonable.

Second, the court gave its opinion on whether there could be a course of conduct even if two of the three letters alleged to constitute the course of conduct were not themselves capable of constituting harassment.  (This issue was not determinative of the case because the Court of Appeal found that each of the three letters was by itself capable of constituting harassment.)

In the Court of Appeal's judgment, it is the course of conduct, rather than the individual instances that make up the course of conduct, that must amount to harassment.   It is therefore possible that a course of conduct may amount to harassment even if the individual acts by themselves would not be considered to be harassment.  What the court must do is to assess the course of conduct as a whole with a view to determining whether that course of conduct amounts to harassment.

The court also decided that a defendant's conduct after proceedings have been commenced - including the contents of his pleadings and court documents - may be of evidential assistance in deciding whether the course of conduct complained of amounts to harassment and it expressed the view (without having to decide the point) that an oppressively pleaded defence may even of itself be part of such a course of conduct.  Finally, the court decided that civil liability for harassment could attach to a partnership or unincorporated body.

Comment

The Iqbal case should remind practitioners of the potential for harassment claims to arise in circumstances very different from the stalking scenarios for which the 1997 Act was originally intended.  In light of the court's finding that a deliberate attack on an individual's personal and professional integrity may amount to harassment, there is obvious potential for a harassment claim to be pursued alongside, or instead of, a defamation claim.  The case should also serve as a reminder to those engaged in litigation to conduct the proceedings in a reasonable manner and not to act oppressively, unreasonably or in such a way as to cause alarm or distress.

See further section 8.2 of The Privacy Law Handbook.  There is also a more detailed commentary on Iqbal on the Inforrm blog here.