Hayes v Willoughby (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Moses,Lord Justice Sullivan,Lord Justice Gross |
| Judgment Date | 13 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1541,[2011] EWCA Civ 817 |
| Docket Number | Case No: B2/2010/2960,Case No: B2/2011/0008 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2011 |
[2011] EWCA Civ 1541
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
His Honour Judge Moloney QC
9CB01831
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lord Justice Sullivan
and
Lord Justice Gross
Case No: B2/2011/0008
Mr Neil Addison (instructed by Ginn and Co) for the Appellant
Mr Clive Wolman for the Respondent
Hearing date: 17 th November 2011
This appeal turns on the correct construction of Section 1 of the Protection from Harassment Act 1997 (the 1997 Act). Throughout a period of seven years between 2002 and 2009 the respondent, Mr Willoughby, had waged what the judge described as "on any view, a lengthy and persistent campaign of correspondence and investigation". This included allegations of fraud and embezzlement communicated to the Inland Revenue and to Customs & Excise, to the Criminal Investigation Branch of the DTI, to Companies House, to the Official Receiver and to several different Police forces. The Official Receiver alone estimated that he had received 400 communications about the claimant, Mr Hayes, from the defendant.
His Honour Judge Moloney QC at the Cambridge County Court on 17 May 2010 concluded that this course of conduct exceeded "even the widest limits of reasonableness and became unreasonable and excessive". There is no appeal against his findings of fact nor against his assessment of that conduct.
Yet the judge felt constrained by the terms of the 1997 Act and Walker J's construction of that Act in Edo MBM v Axworthy [2005] EWHC 2490 to conclude that Mr Willoughby's course of conduct fell outwith the prohibition in s.1 of the Act for two reasons. First, that he had established the statutory defence that the purpose of his conduct was prevention or detection of crime within the provisions of section 1(3)(a). He held that Mr Willoughby had a genuine belief or strong, sincere and reasonably based suspicion that the claimant had been guilty of fraud, false accounting, or tax evasion and that that was sufficient to amount to a defence. Second, he took the view that three incidents, which viewed in isolation could not be justified as conduct to prevent or detect crime, did not constitute a separate course of conduct and therefore were protected by his conclusion that the campaign as a whole was not unlawful.
This appeal concerns the question whether the judge erred in his construction of the statute as to the availability of the defence under Section 1(3)(a) that the course of conduct was pursued for the purpose of preventing or detecting crime. It also raises a second question whether the three incidents in respect of which the defence under s.1(3)(a) would not have been available, were protected as part of a course of conduct, which was otherwise lawful. It was accepted that but for the judge's construction of what is loosely described as the defence provided in that sub-section, the conduct was a course of conduct which amounted to harassment.
The judge set out in some detail the nature of the allegations made by Mr Willoughby against the appellant, Mr Hayes. In the light of the factual conclusions, it would be unfair to him to repeat unsubstantiated but serious allegations made against Mr Hayes, in relation to the alleged disposal of assets of companies he controlled. The judge recorded that the allegations had been closely investigated by the Official Receiver of the United Kingdom. He had concluded that, on examination of the companies' bank accounts, apparent discrepancies could be largely accounted for by legitimate expenditure. The police and the DTI, to whom similar allegations had been made, concurred. But Mr Willoughby refused to accept those conclusions and continued to raise queries, based upon what he regarded as the inadequate investigations of the authorities and their illogical conclusions. The judge recorded the authorities' increasingly exasperated responses to the defendant's persistence. For example, on 5 December 2005 the Official Receiver wrote:-
"I believe that there is no response from me short of some serious punishment of Mr Hayes which will satisfy your issues with him";
and from Detective Sergeant Hearty of the Suffolk Constabulary on 22 November 2007:-
"As an experienced detective who has worked in the fraud area for well over a decade, I can personally say that the evidence that is available is insufficient to take this matter to a criminal court";
and from the CIB of the DTI on 29 July 2008, in declining to consider any future request for investigation of:-
"the now arguably stale concerns about inter-company management charges levied over the period 2001–2005, [is] perhaps not the response you were hoping for but one I feel is wholly justified by the circumstances of the case."
The judge's findings of fact in relation to the allegations of fraud and criminality between 2002 and 2009 are as follows:-
"30. In fairness to W, his position is that the various investigative bodies have persistently failed either to understand the nature of his concerns or to produce a convincing answer to them. He is a very intelligent and persistent man, and while it is easy to sympathise with the busy officials with whom he deals, it is also true that he has often been able to identify some unanswered question which calls for a further response. The position has now been reached that most of the relevant bodies are refusing to have any more to do with him, [the defendant], 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. The inevitable conclusion is that he has developed an unshakeable conviction of H's criminal guilt which now precedes rather than follows any objective assessment by him of the evidence."
The judge summarised his view as to these allegations in his conclusions:-
"So long as W could credibly maintain that the investigations into H were based on insufficient evidence, and that key documents were being overlooked, the general thrust of his campaign remained a reasonable one to pursue. But, as he himself stated to the OR on 5 June 2007, the crucial evidence was that of the company's bank statements, which if examined would prove or refute the truth of W's suspicions about H's conduct. From the time when he was notified by the OR on 14 June 2007 that the evidence had been examined, and that it did not support his case, or at the latest from 21 September 2007 when the OR sent him a schedule accounting for 'substantially the whole of the book debts (of UK) outstanding at 31 December 2002', it appears to me that W's persistence in his campaign exceeded even the widest limits of reasonableness and became unreasonable and obsessive; even though he still disagreed with the OR's conclusions, and could articulate reasons for doing so, the time had come to let matters rest." [44]
The judge recorded the defendant's response to Mr Hayes' direct question at trial:-
"'What would satisfy you, so that you would cease involvement in my life?' His reply was revealing: he wanted to solve the puzzle and understand what happened to the money; it was 'an intellectual problem, like playing bridge'."
Mr Hayes made additional complaints that Mr Willoughby, in the course of his campaign, had intruded into his private and personal affairs. He made eight specific complaints. The judge found that his conduct in three particular respects went too far, was unreasonable, and could not be characterised as being for the purpose of preventing or detecting crime. Mr Willoughby extracted and misused admissions Mr Hayes had made in matrimonial proceedings that he had suffered from mental and emotional illness. He sent evidence of Mr Hayes' mental illness in 2007 to the Institute of Legal Executives in the course of a complaint against one of Mr Hayes' legal advisers. Second, in 2005 he wrote to the Mr Hayes' general practitioner asking him to confirm the authenticity of a sick note the GP had written on the pretext that Mr Hayes appeared to have been working during the period of the note. The GP subsequently confirmed the authenticity of the note. An associate of the defendant also wrote to the doctor making a similar request. Subsequently, the doctor authenticated both of the notes. The judge described this conduct thus:-
"It is an indication of the intensity of the defendant's and his associate's hostility to and suspicion of [the claimant] at this time that intelligent men could entertain such an absurd idea or act upon it in the excessive and disproportionate manner that they did."
The third example related to another incident in March 2005 when the defendant telephoned Mr Hayes' landlord in the United States and left a voicemail saying that he was entering the bankruptcy court the next day, that the house occupied by Mr Hayes would now be available to rent, and asked whether Mr Hayes owed the landlord any money. The judge described this conduct as inexcusable.
Section 1 of the Act provides:-
"1. Prohibition of harassment
(1) A person must not pursue a course of conduct –
(a) which amounts of 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 or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of...
To continue reading
Request your trial
-
Hayes v Willoughby (No 2)
...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 Respondent Robin Allen QC Akua Reindorf (Instructed by Ginn & Co) Heard on 17 Januar......
-
Robert Mark Whetstone (trading as Whelby House Dental Practice) v Medical Protection Society Ltd (sued as Dental Protection Ltd)
...and confine "reasonableness" to the situation where the arbiter on entirely objective criteria is the court itself. 38. In Hayes (FC) v. Willoughby [2013] UKSC 17 , Lord Sumption observed, at para 14, that: "… Rationality is a familiar concept in public law. It has also in recent years pl......
-
Victory Place Management Company Ltd v (1) Florian Gunter Kuehn
... ... Standard Bank London [2008] EWCA Civ 116 at paragraphs 60–6 per Rix LJ; and Hayes v. Willoughby [2013] UKSC 17 at paragraph 14 per Lord Sumption ... 35 It is only necessary now to cite a passage from ... ...