Ferguson v British Gas Trading Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,And,Lord Justice Lloyd,Lord Justice Sedley |
| Judgment Date | 10 February 2009 |
| Neutral Citation | [2009] EWCA Civ 46 |
| Docket Number | Case No: A2/2008/1731 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2009 |
[2009] EWCA Civ 46
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Seymour QC
(Sitting as a Judge of the High Court)
Before : The Rt Hon Lord Justice Sedley
The Rt Hon Lord Justice Jacob
and
The Rt Hon Lord Justice Lloyd
Case No: A2/2008/1731
HQ08X01805
Martin Porter QC (instructed by Messrs Davis & Co) for the Appellant
James Purnell (instructed by Messrs Shepherd & Wedderburn) for the Respondent
Hearing date: 21 January 2009
Lord Justice Jacob:
It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson, the claimant in this case. Because she funds the claim out of her personal resources, she does so at considerable risk: were she ultimately to lose she would probably have to pay British Gas's considerable costs. I call the defendant “British Gas”, its full name being “British Gas Trading Limited.”
Ms Ferguson used to be a customer of British Gas. She says she ceased to be so on 25 th May 2006, on the same day becoming a customer of nPower. In her Particulars of Claim she sets out what she says British Gas did to her thereafter. Because the detail is lengthy I set out the relevant part of the Particulars in full in the Annex to this judgment rather than burden the reader with it here.
To summarise, starting on 21 st August 2006 and continuing until at least late January the next year, British Gas sent Ms Ferguson bill after bill and threatening letter after threatening letter. Nothing she could do would stop it. The threats were threefold in nature: those to cut off her gas supply, to start legal proceedings and, a matter most important to her as a businesswoman, to report her to credit rating agencies. She wrote letter after letter pointing out that she had no account with British Gas, she made phone calls (with all the difficulty of getting through), but to no avail. Mainly her letters received no response. Sometimes she received apologies and assurances that the matter would be dealt with. But then the bills and threats continued. She complained to Energy Watch. She wrote to the Chairman of British Gas twice with no response. She says she wasted many hours, and, more importantly, was brought to a state of considerable anxiety, not knowing whether the gas man would come at any time to cut her off, whether she would have legal proceedings served upon her or whether she would be or had already been reported to a credit rating agency. Even when her solicitor wrote on her behalf about an unjustified bill of 18 th January, no response was received.
Ms Ferguson claims that British Gas's course of conduct amounts to unlawful harassment contrary to the Protection from Harassment Act 1997. She claims £5,000 for distress and anxiety and £5,000 for financial loss due to time lost and expenses in dealing with British Gas. She is open about her reason for bringing these proceedings. It is mainly not to claim damages for herself—she says she will give a substantial proportion of any sum awarded to charity. Ms Ferguson's principal object is to bring British Gas to book. In her words they should “not simply blame information technology. They should instead start taking responsibility for the running of their company in a competent, honest and ethical manner.”
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. It goes so far as to say that the claim is so weak that Ms Ferguson's Particulars of Claim disclose no reasonable ground for bringing it. So the claim should be struck out and not even allowed to go to trial.
I note in passing that, having set out on a strike-out course, quite wrongly British Gas put in evidence consisting of two witness statements to support its application, the sort of material that might be adduced in evidence at trial. This of coursed added unnecessarily to the legal costs. Mr. Martin Porter QC for British Gas properly did not seek to rely upon this evidence. Nor, seemingly, was any attempt made to rely upon it below. But of course Ms Ferguson's legal team could not realistically completely ignore this material. That will have cost her money and increased the pressure upon her. It is an unattractive aspect of this case which fortunately no longer matters since by our decision (communicated at the end of the hearing) and the decision below, British Gas has been ordered to pay her costs both of the hearing below and here. These are not insubstantial, though they are less than those of British Gas, whose claim for costs in this Court alone (if they had won) amounted to £20,368.75. Below, British Gas was ordered to pay £10,575.
As I have said, British Gas applied to strike out the claim. The case was transferred from Bromley County Court to the High Court for this application to be considered, presumably because the parties considered that a question of some importance was at stake. The strike-out application was heard and decided by HHJ Seymour QC sitting as a Deputy High Court Judge. He refused to strike out the claim, refused permission to appeal and transferred the case back to the County Court.
British Gas sought and obtained from Hughes LJ permission to appeal to this Court. Hughes LJ granted permission saying “however lamentable and frustrating the conduct of the Defendants, it is arguable that taken at its highest, it does not pass the criminal threshold.”
Before us Mr Porter takes that point (which he called the “gravity test”). He takes a further, more technical point, about whether, given the fact that the defendant is a company, it can be liable on the matter pleaded (the “corporate liability point”).
The Legislation
The relevant language of the Protection from Harassment Act reads as follows:
Prohibition of harassment.
1(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.
Offence of harassment.
2(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
Civil remedy.
3(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
Interpretation of this group of sections
7(1) This section applies for the interpretation of sections 1 to 5A
(2) References to harassing a person included alarming the person or causing the person distress
The Gravity test
Mr Porter accepted that what British Gas did to Ms Ferguson amounted to “a course of conduct.” But, he submitted, it was not enough even arguably to amount to “harassment”. No reasonable court could so conclude and hence the claim was without reasonable foundation.
He pointed out that harassment is both a civil wrong (s.3(1)) and a crime (s.2(1)). That showed, he said, that the impugned conduct had to be rather serious. For otherwise merely annoying or aggravating matters of everyday life would be criminalised, which cannot have been the intention of Parliament.
In support of his contention he took us to Majrowski v Guys and St. Thomas's NHS Trust [2007] AC 224 and Sunderland v Conn [2008] EWCA Civ.148.
The actual point at issue in Majrowski was whether an employer could be vicariously liable for harassment by acts of its employee. The House of Lords held that it could. However in the course of his reasoning Lord Nicholls observed at [30]:
Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.
And Baroness Hale said at [66]:
All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and...
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