Hayes v Willoughby (No 2)

JurisdictionEngland & Wales
JudgeLord Sumption,Lord Neuberger,Lord Wilson,Lord Mance,Lord Reed
Judgment Date20 March 2013
Neutral Citation[2013] UKSC 17
CourtSupreme Court
Date20 March 2013
Hayes (Fc)
(Respondent)
and
Willoughby
(Appellant)

[2013] UKSC 17

before

Lord Neuberger, President

Lord Mance

Lord Wilson

Lord Sumption

Lord Reed

THE SUPREME COURT

Hilary Term

On appeal from: [2011] EWCA Civ 1541

Appellant

Clive Wolman

(Instructed by Michael John Willoughby)

Respondent

Robin Allen QC

Akua Reindorf

(Instructed by Ginn & Co)

Heard on 17 January 2013

Lord Sumption (with whom Lord Neuberger and Lord Wilson agree)

1

Section 1(1) of the Protection from Harassment Act 1997 provides that 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." Harassment is both a criminal offence under section 2 and a civil wrong under section 3. Under section 7(2), "references to harassing a person include alarming the person or causing the person distress", but the term is not otherwise defined. It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR). One of the more egregious forms of harassment is the stalking of women. But the Act is capable of applying to any form of harassment. Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace ( Majrowski v Guy's and St. Thomas's NHS Trust [2007] 1 AC 224); and campaigns against the employees of an arms manufacturer by political protesters ( EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB)).

2

The present appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Section 1(3) of the Act provides:

"(3) Subsection (1) 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."

3

The plaintiff, Mr Timothy Hayes, is a businessman who used to manage a number of companies involved in software development. There is an issue about whether he also owns them, but for present purposes that does not matter. One of Mr Hayes's companies, IT-Map (UK) Ltd, used to employ the defendant, Mr Michael Willoughby. In 2002, the two of them fell out. Mr Hayes accused Mr Willoughby of attempting in conjunction with three employees of another of his companies, Nucleus Information Systems Ltd, to undermine Nucleus with a view to forcing it into liquidation and buying back its business for themselves. These accusations were not fanciful. The findings of an employment tribunal in 2006 and of Judge Moloney in these proceedings show that they were substantially justified. In 2003, the two companies and the four employees were locked in litigation before employment tribunals, and Nucleus was suing all four men in the High Court for conspiracy, malicious falsehood and copyright infringement. The High Court litigation was resolved at the end of 2004, when Nucleus accepted a payment into court.

4

The disputes about the conduct of the four employees and the resultant litigation are not themselves said to be part of the course of harassment. They are part of the background and they are the occasion for it. The course of conduct on which Mr Hayes relies began in late 2003, when Mr Willoughby embarked on an unpleasant and obsessive personal vendetta against him. Mr Willoughby alleged that his management of his companies, principally in the accounting year 2002–3, was characterised by fraud, embezzlement and tax evasion. The campaign was mainly carried on by pressing these allegations in very many letters addressed over the years to the Official Receiver, the police, the Department of Trade and Industry and other public bodies. The judge recorded that the Official Receiver estimated that no less than 400 communications on the matter were exchanged between Mr Willoughby and the Official Receiver alone. The Official Receiver obtained access to the company's records and investigated the allegations. The DTI commenced two investigations under section 447 of the Companies Act 1985. The police looked into the allegations. All of them concluded that there was nothing in them. They reported their conclusions to Mr Willoughby in increasingly strong terms, but he was not to be moved and continued to raise queries about what he professed to regard as their inadequate inquiries and illogical conclusions. "The position has now been reached," said the judge, "that most of the relevant bodies are refusing to have any more to do with him, in particular because of their perception that when one of his allegations is conclusively refuted he will simply change his ground and put forward another with equal force."

5

Mr Willoughby's campaign of correspondence with the various public authorities was accompanied by what the judge regarded as unacceptable intrusions into Mr Hayes's privacy and personal affairs. The judge found that three incidents were potentially relevant. In the first, Mr Willoughby obtained from Mr Hayes's ex-wife confidential information derived from their matrimonial proceedings about his mental and emotional ill-health and gratuitously passed it to third parties in order to generate prejudice against him. Secondly, he suggested to Mr Hayes's GP that Mr Hayes had forged the latter's signature on sick-notes used to explain his absence from court proceedings in the course of the litigation of 2003–4. Third, he left a voicemail message on the telephone of Mr Hayes's landlord in the United States on the day before his bankruptcy, reporting that Mr Hayes was about to go bankrupt and asking whether he owed the landlord money.

6

The judge found that Mr Willoughby's words and acts constituted a course of conduct, linked by a common purpose and subject-matter, calculated to cause and in fact causing alarm, distress and anxiety to Mr Hayes. Although he did not communicate directly with Mr Hayes, Mr Willoughby was well aware that his allegations and other conduct would get back to Mr Hayes and have that effect on him. The judge concluded that this amounted to harassment, and it is no longer disputed that it does. The sole remaining issue is whether Mr Willoughby is entitled to a defence under section 1(3)(a), on the ground that his campaign was pursued "for the purpose of preventing or detecting crime."

7

On that point, the judge's findings were as follows:

Some of these findings seem unduly charitable to Mr Willoughby. But the judge heard the witnesses, and it is not for an appellate court lacking that advantage to substitute its own assessment of his state of mind. The question is what is the effect of the findings as a matter of law.

  • (1) Mr Willoughby's conduct was gratuitous, for apart from some modest financial claims against Mr Hayes, almost all of which were resolved at an early stage of his campaign, he had no personal interest in establishing his allegations against Mr Hayes. He was animated, the judge said, by "mixed motives, including personal animosity to H (in fairness based largely on the same suspicions) and a sort of intellectual curiosity." He quoted Mr Willoughby's evidence that it was an intellectual problem, "like playing bridge."

  • (2) Mr Willoughby has at all times sincerely believed that Mr Hayes had stolen large sums from his companies in the United Kingdom and committed a variety of offences in the course of doing so. He continues to believe this to the present day. His campaign was throughout "subjectively directed at the prevention or detection of crime."

  • (3) At the outset of the campaign, there was a reasonable basis for Mr Willoughby's suspicions. But Mr Willoughby accepted, indeed asserted, that the crucial evidence was that of the companies' bank statements which if examined would either prove or refute his allegations. Once it became clear that the Official Receiver had examined this material and that it did not support Mr Willoughby's case, the judge considered that his persistence ceased to be reasonable. The judge found that this stage had been reached by 14 June 2007, when the Official Receiver reported to him the conclusion of his investigation, or at the latest by 21 September 2007 when the Official Receiver sent him a schedule accounting for substantially the whole of the book debts of IT-Map in the relevant period. Thereafter, Mr Willoughby's persistence "exceeded even the widest limits of reasonableness and became unreasonable and obsessive". "The inevitable conclusion", the judge said, "is that he has developed an unshakeable conviction of H's criminal guilt which now precedes rather than follows any objective assessment."

  • (4) The three incidents of personal intrusions into Mr Hayes's private life (such as the contact with his GP) were never reasonable and had no relevant connection with the prevention or detection of crime. But they did not constitute a separate "course of conduct" capable of amounting to harassment independent of the correspondence with the public authorities.

8

It is common ground that in respect of the period up to June 2007 their effect is that Mr Willoughby is entitled to rely on section 1(3)(a) as a defence to the allegation of harassment. The question at issue is whether...

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