Bank of Scotland v Johnson (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Beatson,Lord Justice Lloyd |
| Judgment Date | 19 June 2013 |
| Neutral Citation | [2013] EWCA Civ 982 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2013 |
| Docket Number | Case No: B2/2012/2451 |
[2013] EWCA Civ 982
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE STAITE)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Lloyd
Lord Justice Jackson
and
Lord Justice Beatson
Case No: B2/2012/2451
Mr David E Grant (instructed by SCM Solicitors) appeared on behalf of the Appellant
The Respondent's husband appeared in person on her behalf
(As Approved)
This judgment is in five parts, namely Part 1: Introduction; Part 2: The facts; Part 3: The present proceedings; Part 4: The appeal to the Court of Appeal; Part 5: Conclusion.
Part 1: Introduction
This is an appeal to the Court of Appeal by a bank against an order made against it in proceedings for unlawful harassment. The appellant in this court and defendant in the action is Bank of Scotland Plc, to which I shall refer to as "the bank". One division of the bank comprises what was formally the business of Halifax Plc, to which I shall refer as "Halifax". The respondent in this court and claimant in the action is Mrs Marian Pamela Johnson, who is a customer of the bank. In this judgment I shall refer to the Protection from Harassment Act 1997 as "the 1997 Act".
Section 1 of the 1997 Act provides:
(1)A person must not pursue a course of conduct—
(a)which amounts to harassment of another, and
(b)which he knows or ought to know amounts to harassment of the other.
(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other."
Section 2 of the 1997 Act provides that harassment is a criminal offence. Section 3 of the 1997 Act provides that harassment is a civil wrong which may be the subject of a claim for damages in proceedings. Subsequent sections of the Act provide for the court to make an injunction, if appropriate, restraining harassment.
Section 7(3) of the 1997 Act provides:
"A course of conduct must involve—
(a) in the case of conduct in relation to a single person, see section 1(1), conduct on at least two occasions in relation to that person, or
(b) in the case of conduct in relation to two or more persons, see section 1(1)(a), conduct on at least one occasion in relation to each of those persons."
I will refer to the Civil Procedure Rules 1998 (as amended) as "CPR". After these introductory remarks, I must now turn to the facts.
Part 2: The facts
The claimant and her husband, Mr Stephen Johnson, have for many years been customers of Halifax. On 17 September 2007 Halifax transferred its undertaking to the Governor and customers of the Bank of Scotland. Since that date Halifax has operated as a trading division of Bank of Scotland. In January 2009 Lloyds TSB Group Plc acquired Bank of Scotland.
Both the claimant and her husband have held a number of different Halifax accounts. In particular, the claimant has for many years had a current account number 00454543, to which I shall refer as "543". The claimant had an overdraft facility of £1,500 on this account until 4 August 200On that date Halifax withdrew the facility and required the claimant to repay the overdrawn balance, which then stood at £1,387.01.
The claimant was in poor health. Both she and her husband were in financial difficulties. Over the next three years the claimant made modest but regular payments to Halifax in order to reduce indebtedness. By 20 August 2011 the overdrawn balance on account 543 was £945.44.
Meanwhile, Halifax decided to seek immediate repayment. On 14 June 2011 Halifax instructed Eversheds LLP to collect the debt. Eversheds in turn instructed Fairfax Solicitors, to whom I shall refer as "Fairfax", to deal with the matter. On 4 July 2011 Fairfax sent a letter to the claimant on behalf of their client, Halifax. Fairfax demanded immediate repayment of £975.44, which they said was due on account number D/39046240-4. This was a roll number which Halifax had allocated to the claimant's current account. Unfortunately, Fairfax did not make this clear in their letter.
Fairfax then went on to threatening legal proceedings if they did not receive payment within nine days. Over the next few weeks Fairfax sent further letters, although they did not commence proceedings.
On 28 September 2011 Fairfax sent the following letter to the claimant:
"Our client: Halifax, A Division of Bank of Scotland Plc, Account number: 38017264086
Balance: £945.44.
We refer to the above matter and write to inform you that for the second time you have failed to maintain payment in accordance with the agreed arrangement.
Please be advised that you now have 48 HOURS from receipt of this letter to contact this office to arrange payment of the outstanding amount due under the terms of your arrangement.
Failure to respond to this may result in action proceeding for the full balance outstanding."
The account number quoted in this letter (to which I shall refer as "4086") was a new number. Apparently Halifax had allocated this new number to the claimant's current account as part of the process of integrating the systems of Bank of Scotland with the systems of Lloyds TSB Group Plc. Once again, no-one appears to have explained this to the claimant. As both the claimant and her husband had several different accounts with Halifax, the use of this new number, 4086, caused some confusion and uncertainty.
On 2 October 2011 Halifax's customer relations department sent a letter to Mr and Mrs Johnson apologising for any inconvenience caused and stating:
"I can confirm that the balance of your account is now at zero".
This letter did not state the account number of the account which now had a zero balance. Thereafter Fairfax continued to correspond with the claimant, demanding payment of £945.44 and referring to account number 4086.
In their letter of 13 October 2011, Fairfax warned the claimant that legal proceedings against her would involve a county court judgment and, after such a judgment, application would be made to the court to enforce it by means of warrant of execution, attachment of earnings order or a charging order. The letter contained a brief explanation of each of those methods of enforcement.
In addition to sending letters, Fairfax also made phone calls to the claimant. Both the claimant and her husband became frustrated by these events. On 17 October 2011 Mr Johnson wrote to both Fairfax and the bank, threatening to claim damages for harassment. This letter did not achieve its objective.
In December 2011 Halifax instructed Robinson Way Limited, to which I shall refer as "Robinson Way", who are debt collectors based in Salford. Robinson Way proceeded to pursue the claimant, both by letters and phone calls seeking payment. Robinson Way gave the account number as 4086 and said that £930.44 was due on this account.
The claimant and her husband took the view that the bank's conduct amounted to unlawful harassment. Accordingly they commenced the present proceedings.
Part 3. The present proceedings
On 29 December 2011 the claimant issued an application in the Chelmsford County Court for an injunction to restrain Bank of Scotland from harassing her by telephone or correspondence in respect of account 4086. On 17 January 2012 the claimant issued a claim form under CPR Part 8 in the Chelmsford County Court. In a long handwritten attachment to this claim form, the claimant set out much fuller details of the harassment which she alleged. The issue of proceedings did not affect the flow of correspondence from Robinson Way. That firm continued to send letters demanding payment, although in March 2012 they reduced their client's claim to £792.01. Bank of Scotland notified the court that they intended to defend the claim.
On 3 February 2012 District Judge Hodges gave directions as follows. The claimant had permission to serve the proceedings out of the jurisdiction. That presumably was because the head office of Bank of Scotland was in Scotland. The judge directed that the defendant should file and serve the evidence upon which it wished to rely by 28 February. The judge directed that the claimant do file and serve any written evidence upon which she intended to rely by 9 March. He then adjourned this litigation to 19 March at 2.00, with a time estimate of 30 minutes.
On 1 March 2012 the defendant served its evidence. This comprised a witness statement by Miss Kelly Duffy, a senior legal assistant within SCM Solicitors. SCM Solicitors are part of the in-house litigation department of Lloyds Banking Group Plc. In her statement, Miss Duffy denied that the letters and phone calls to the claimant constituted harassment. She explained that 4086 was the new number assigned to the claimant's current account. She said that the outstanding overdrawn balance on this account was now £792.01. Her final sentence reads as follows:
"The Defendant therefore cannot agree to stop contacting the claimant until such time as the balance of the account has been repaid in full."
The exhibit to Miss Duffy's statement included copies of many letters chasing payment which the bank or Fairfax or Robinson Way had sent to the claimant. The exhibit did not include all of those letters, as others have been produced to us in a bundle prepared by Mr Johnson. The exhibit also included copies of Robinson Way's record of phone calls made to the claimant.
The claimant did not file...
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