Frederick Marinello V. The City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2010] CSOH 17 |
| Date | 02 March 2010 |
| Docket Number | A994/08 |
| Court | Court of Session |
| Published date | 02 March 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 17 | |
| A994/08 | OPINION OF LORD UIST in the cause FREDERICK MARINELLO Pursuer; against THE CITY OF EDINBURGH COUNCIL Defenders: ____________ |
Pursuer: Allardice; Thompsons
Defenders: Duncan; Gill Lindsay
2 March 2010
Introduction
[1] The pursuer, who was born on 5 April 1958, is employed by the defenders as a Community Service Assistant. In this action he seeks damages from them for their alleged breach of section 8 of the Protection from Harassment Act 1997 (the 1997 Act). He avers that the harassment to which he was subject consisted of conduct on the part of two of his superiors, James Hewitt and Frank Kane.
[2] The case called before me on the procedure roll on the defenders' first two pleas‑in‑law, being respectively a plea to the relevancy and lack of specification of the pursuer's averments and a plea of time bar.
Protection from Harassment Act 1997
[3] The Protection from Harassment Act 1997 (the 1997 Act) is an Act to make provision for protecting persons from harassment and similar conduct. Sections 1 to 7 extend to England and Wales only and sections 8 to 11 extend to Scotland only. In order to understand the English decisions on the Act it is necessary to know what sections 1, 2 and 3, so far as relevant, provide. These sections provide as follows:
"1 - Prohibition of harassment.
(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.
(1A) A person must not pursue a course of conduct -
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above) -
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do
2 - Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.
3 - Civil remedy
(1) An actual or apprehended breach of section 1(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."
[4] Section 8(1) and (2) provides:
"8 Harassment
(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and -
(a) is intended to amount to harassment of that person; or
(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.
(2) An actual or apprehended breach of subsection (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; and any such claim shall be known as an action of harassment.
(3) For the purposes of this section -
'conduct' includes speech;
'harassment' of a person includes causing the person alarm or distress; and
a course of conduct must involve conduct on at least two occasions.
(4) In an action of harassment the court may, without prejudice to any other remedies which it may grant, -
(a) award damages;
(b) grant
(i) interdict or interim interdict.
(6) The damages which may be awarded in an action of harassment include damages for any anxiety caused by the harassment and any financial loss resulting from it."
[5] There is no provision in the Act making harassment a statutory offence in Scotland.
[6] Section 10 provides as follows:
"10 Limitation
(1) After section 18A of the Prescription and Limitation (Scotland) Act 1973 there is inserted the following section -
"18B Actions of harassment
(1) This section applies to actions of harassment (within the meaning of section 8 of the Protection from Harassment Act 1997) which include a claim for damages.
(2) Subject to subsection (3) below and to section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after -
(a) the date on which the alleged harassment ceased; or
(b) the date (if later than the date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to have become aware that the defender was a person responsible for the alleged harassment or the employer or principal of such a person.
(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who is alleged to have suffered the harassment was under legal disability by reason of nonage or unsoundness of mind.
(2) In subsection (1) of section 19A of that Act (power of court to override time-limits), for 'section 17 or section 18 and section 18A' there is substituted 'section 17, 18, 18A or 18B'."
The pleadings
[7] The averments alleging harassment are contained in condescendence 4, which it is necessary to set out at length:
"(i) The pursuer works as part of the North West Criminal Justice Team which is based at Muirhouse Crescent Social Work Centre, 34 Muirhouse Crescent, Edinburgh EH4 4QL. His job involves the supervision of groups of offenders who have been sentenced to community service. Until 2004 the pursuer would supervise his groups with the assistance of a further Community Service Assistant. He would be responsible for the management of projects to be carried out by his group and was therefore able to plan the work in advance. He was able to get to know the members of his group and how they were likely to interact with each other. Such advance knowledge assisted in the management of the group, some of whom would include, from time to time, offenders with histories of violence. The pursuer was extremely experienced at this type of work and enjoyed it. In 2004 the pursuer's manager, Mr James Hewitt, had a deputy appointed to him, Mr Frank Kane. They were respectively the Community Service Officer and the Depute Community Service Officer. During 2004 responsibility for the management of his group's projects was gradually taken away from the pursuer. Under the new management regime he was not provided with adequate notice of the membership of his group and was no longer involved in planning the projects which they would work upon. A system arose whereby the said Mr Hewitt would post a list of the group members through the pursuer's letterbox on a Saturday evening along with a set of minibus keys. The pursuer was then required to attend at the said North West Criminal Justice Team's Muirhouse office car park and wait for his group members to arrive there. Under the new regime the pursuer was working on his own. Often, more than the five men on his list would turn up and he would have to send the two or three extra men away. Offenders who have been sentenced to community service are required to complete that service within one year of sentence. There are waiting lists for offenders to be allocated to community service and pressure within the justice system to complete community service in time. The pursuer found it difficult and stressful to turn extra men away but as 2004 progressed he increasingly found that more men were turning up on Sunday morning than were on his list. The defenders' averments in answer are denied except insofar as coinciding herewith. The pursuer's clients routinely included offenders who had been sentenced to the maximum number of community service hours for serious offences such as assault. It only took one or two such clients in a group to make it difficult to manage. It was extremely important that the pursuer's authority with his groups be maintained in their eyes and that nothing be done on the part of his line managers to diminish that responsibility as hereinafter condescended upon.
(ii) In summer 2005 the pursuer was supervising a group who were delivering items to the Heart Foundation shop in Wester Hailes. He received a telephone call from the said Frank Kane who instructed him to return to the office. The pursuer had to drive back to the office with five offenders in his minibus and meet with Frank Kane there. Said Frank Kane then instructed the pursuer to drive to an address in Drylaw which belonged to an elderly disabled woman. Said Frank Kane told the pursuer that the elderly lady had accused the pursuer of taking money from her for a washing machine which his group had installed in her house. To accept money for tasks carried out by his group would be a serious breach of the rules under which community service is carried out. The pursuer was instructed by the said Frank Kane to follow him into the elderly lady's house and without preamble the said Kane asked the old lady if the pursuer was the man to whom she had given money for the washing machine. Said elderly lady confirmed that she had not given any money to the pursuer. The said James Hewitt then arrived at the house and again asked the elderly lady if the pursuer was the man to whom she had made payment for a washing machine. He asked her three times and on each occasion she confirmed that it was not the pursuer. The pursuer then left said house with Kane and Hewitt and in full view of the offenders who were still sitting in the minibus he was berated about the incident by both said Kane and Hewitt in front of said offenders. Said incident had the effect of demeaning the pursuer in the eyes of the offenders he was required to supervise and caused him considerable stress and anxiety in regard to his ability to continue to supervise that group. The defenders' averments in answer are denied except insofar as...
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...... Chadwick LJJ in Trotman v North Yorkshire County Council [1999] LGR 584 (at 591 and 592-3) to the effect that such ... of the statutory concept of "harassment" in Marinello v City of Edinburgh Council 2011 SC 736. At para [11] ......