Hayes v Butters and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nugee |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] EWHC 4557 (Ch) |
| Date | 10 December 2014 |
| Court | Chancery Division |
| Docket Number | Case No: HC/2014/0002788 |
[2014] EWHC 4557 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The High Court of Justice
7 Rolls Building
Fetter Lane
London EC4A 2NL
Mr Justice Nugee
Case No: HC/2014/0002788
Mr Butters appeared in person
Mr Wolman appeared on behalf of the Third Defendant
Mr Sims appeared on behalf of the Claimant
Approved Judgment
I have before me an application by Mr Stephen Grant, the trustee in bankruptcy of Mr Timothy Hayes, to strike out this action which is a claim brought by Mr Hayes against his ex-wife, Mrs Carol Hayes, and her partner, Mr Graham Butters, under the Protection from Harassment Act 1997 ("the 1997 Act").
This is the third in a series of judgments that I have given in related actions and applications. I gave Judgment No. 1 on 12 June of this year on an appeal by Mrs Hayes against the dismissal of a bankruptcy petition by which she sought to make Mr Hayes bankrupt a second time. I dismissed that appeal: see Hayes v Hayes [2014] EWHC 2694 (Ch). I gave Judgment No. 2 on 11 July of this year on an application by Mr Hayes to strike out an action brought against him by Mr Grant in relation to proceedings Mr Hayes had taken in the Cambridge County Court against a Mr Willoughby under the provisions of the 1997 Act. I acceded to that application and struck out Mr Grant's proceedings: see Grant v Hayes [2014] EWHC 2646 (Ch). Now Mr Grant seeks to strike out the present claim by Mr Hayes against Mr Butters and Mrs Hayes essentially on similar grounds to those advanced in the Willoughby proceedings which I considered in Judgment No. I will not repeat all the background to the present application, some of which is contained in Judgments No. 1 and No. 2, but will try and state no more of the facts than are necessary to resolve this application.
Mrs Hayes successfully petitioned for Mr Hayes to be made bankrupt in 2005 based on a costs order in matrimonial proceedings which had been quantified at some £35,000 and which Mr Hayes has not paid. Mr Hayes was made bankrupt on 23 March 2005. He was discharged from his bankruptcy in the spring of 2006. Mr Hayes says that was on 23 March 2006. Mr Grant, for some reason, says it was on 1 April 2006. Nothing turns on that for present purposes.
The Official Receiver initially became trustee of Mr Hayes' estate but on 4 June 2013 Mr Grant was appointed trustee in his place.
On 28 November 2005 Mr Hayes issued a claim form in the present proceedings in the Queen's Bench Division of the High Court against Mr Butters and Mrs Hayes. The claim form was endorsed with brief particulars of claim in which he alleged that since around February 2003 Mr Butters, acting either for himself or for and on behalf of Mrs Hayes, had maintained a campaign of letters, telephone calls and visits to the claimant, the claimant's current wife and business, and personal contacts of the claimant. He then alleged in paragraph 3 that that was contrary to the 1997 Act and that the defendants had thereby alarmed the claimant and his wife and caused them injury, anxiety, distress and psychological harm. He said that full particulars of the course of conduct were set out in a statement of his served therewith and that full particulars of injury and loss would be served in due course. He claimed, firstly, an injunction and, secondly, damages.
The central foundation of the argument for Mr Wolman, who appears for Mr Grant in these proceedings, as he did before me in the application I dealt with in Judgment No. 2, is as follows: (1) this cause of action, being a so-called hybrid claim, vested in Mr Hayes' trustee as part of his estate under the principle of Ord v Upton [2000] Ch 352; (2) it was an abuse of process for Mr Hayes to pursue it himself; and (3) it should therefore be struck out.
I gave some account of the 1997 Act in Judgment No. 2 but I should do so again and in more detail. Section 1(1) provides as follows:
"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."
Section 1(2) deals with the requisite knowledge of the defendant. Section 1(3) provides what can conveniently be called defences, although they might more properly be called justifications, as follows:
"(1) Subsection ( 1) or (1A) [which does not apply in this case] does not apply to a course of conduct if the person who pursued it shows —
(a) that it was pursued for the purpose of preventing or detecting crime
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
In this case I was told by Mr Butters that his defence relies on each of these three possible defences and indeed also on a fourth defence which I need not detail.
Section 2 makes it a criminal offence to pursue a course of conduct in breach of section 1(1).
Section 3, headed "Civil remedy", provides for remedies for the victims of harassment as follows:
"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 from the harassment."
There are then further provisions.
The section does not expressly say that a victim may apply for an injunction but section 3(3) provides:
"Where —
(a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant."
That subsection plainly envisages that a person who apprehends a breach of section 1(1) and who may be the victim of that course of conduct may apply for, and the Court may grant, an injunction restraining the defendant from pursuing any conduct which amounts to harassment.
Section 7 contains some relevant definitions. Section 7(2) provides:
"References to harassing a person include alarming the person or causing the person distress."
Section 7(3) 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."
It then continues to deal with section 1(1A).
In civil cases, therefore, a claimant may claim damages and/or an injunction. The damages may certainly include, although are not necessarily limited to, damages for anxiety caused by the harassment, and financial loss resulting from the harassment: see section 3(2). It is implicit in that that in order to recover damages the claimant has to prove both that there has been harassment and that the harassment has caused the loss in question. It is also a requirement that the claimant establishes a breach of section 1: see section 3(1). That means that the claimant must show: (a) conduct on at least two occasions (see section 7(3)); (b) that that conduct constitutes a course of conduct that amounts to harassment (see section 1(1)); and (c) that that course of conduct has caused him loss.
In relation to an injunction it is not I think strictly necessary for the claimant to establish that there has already been harassment because section 3(1) refers to an "actual or apprehended" breach of section 1(1) by someone who "is or may be" the victim. On the other hand, the Court will not in practice grant an order restraining a defendant without good ground for thinking that unless restrained the defendant will behave in a wrongful way and in normal circumstances, no doubt, a claimant will rely on past harassment as giving rise to a well-founded apprehension of further harassment. Nevertheless, strictly speaking, whereas for damages the claimant has to show that the defendant has pursued a course of conduct in breach of section 1(1) and has thereby caused anxiety or financial loss or other damage, for an injunction what a claimant has to show is an apprehension of a future breach of section 1(1).
In the present case, of course, Mr Hayes has sought both damages and an injunction. I will have to look at the damages claim more closely in due course but it is first worth noting that Mr Wolman and Mr Sims, who appears for Mr Hayes, are agreed that whatever happens Mr Hayes is free to pursue his claim for an injunction, although they do not, I think, entirely agree on why this is so. Mr Sims submits this is because the claim for an injunction is a separate cause of action from the claim for damages. Mr Wolman, as I understand it, based his agreement more on the fact that the Official Receiver indicated in 2007, and possibly earlier, that he had no objection to Mr Hayes pursuing his claim for an injunction and Mr Grant does not seek to go behind that.
For what it is worth, I tend to agree with Mr Sims that the claim for an injunction is technically a separate cause of action from the claim for damages. A cause of action is:
..."… simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."
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