Roberts v Bank of Scotland Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice McCombe,Lady Justice Arden |
| Judgment Date | 11 June 2013 |
| Neutral Citation | [2013] EWCA Civ 882 |
| Docket Number | Case no: B2/2012/2732(A); B2/2012/2733 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2013 |
[2013] EWCA Civ 882
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEWSBURY COUNTY COURT
(HIS HONOUR JUDGE SHAUN SPENCER QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Lord Justice Mccombe
Case no: B2/2012/2732(A); B2/2012/2733
Mr James Counsell (instructed by DLA Piper UK LLP) appeared on behalf of the Appellant.
The Respondent appeared in person.
(As Approved)
This judgment is in seven parts, namely:
Part 1. Introduction.
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. Liability,
Part 6. Quantum of damages,
Part 7. Conclusion.
This is an appeal by a bank which has been ordered to pay £7,500 damages to a customer whom it harassed by repeated telephone calls. The bank disputes both liability and quantum.
The claimant in this action and respondent in the Court of Appeal is Miss Amanda Roberts. The claimant is a 48-year-old lady who lives in Dewsbury.
The defendant in the action and appellant in the Court of Appeal is Bank of Scotland Plc. The defendant has taken over the business of Halifax Plc and that business now forms one division of Bank of Scotland. The entity with which the claimant dealt at all material times operated under the name "Halifax". I shall therefore refer to the defendant as "Halifax" or "the bank".
I shall refer to the Protection from Harassment Act 1997 as "the 1997 Act". Section 1(1) of the 1997 Act provides:
"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."
Section 2 of the 1997 Act provides:
"(1) A person who pursues a course of conduct in breach of section 1 ( 1) or (1A) 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."
Section 3 of the 1997 Act provides:
"(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."
Section 7 of the 1997 Act provides:
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) 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, or
(b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons."
After these introductory remarks, I must now turn to the facts.
During 2007 and 2008 the claimant was a customer of Halifax. Her account was held at the Leeds office of the Halifax, but the branch which she regularly used was at Dewsbury. The claimant had three accounts with Halifax. There was a current account, a credit card account and a loan account. The current account had an overdraft limit of £1,250. The credit card account had a credit limit of £2,700. The loan account comprised a loan of £7,350, repayable in 86 monthly instalments commencing in April 2006.
There were periods when the claimant exceeded her overdraft limit on the current account or exceeded the credit limit on her credit card account. On the basis of the figures which counsel has mentioned in argument today, it appears that the amounts by which the claimant exceeded her limits were modest.
With a view to resolving these matters, the bank decided to contact the claimant by telephone. There is nothing objectionable in taking that course. The problem in this case lies in the sheer number of phone calls that were made and the content of those calls. According to the bank's log, bank staff made no less than 547 calls or attempted calls to the claimant over the period December 2007 to January 2009. The great majority of those calls were made during the first half of 2008.
The claimant made it perfectly plain to bank staff during these calls that she did not wish to talk to them and she wanted them to stop telephoning. The bank staff refused to desist. They insisted that they would go on telephoning until the claimant answered their security questions and discussed her financial position with them.
The claimant tape recorded some of these telephone calls. Transcripts of the recorded calls have been prepared and they make remarkable reading. The callers are a variety of different people, who ring from call centres dotted around Britain and Ireland. One caller callously talks about the bank ringing the claimant a hundred times or so.
The claimant was greatly distressed by the bombardment of phone calls from the bank. She took the view that this conduct amounted to harassment. Accordingly, she commenced the present proceedings.
By a claim form issued in the Dewsbury County Court on 27 April 2010, the claimant claimed damages for the harassment perpetrated by Halifax. On 13 August 2010, the claimant served her particulars of claim.
The claimant has at all times acted as a litigant in person. Nevertheless, her pleadings are clear and to the point. Paragraph 12 of the particulars of claim gives a fair indication of her case. This reads as follows:
"From 28 th December 2007 the defendant has embarked on a sustained campaign of harassment directed towards the claimant. The unacceptable course of conduct began with telephone calls to her and to her parents. It is believed that the reason for this course conduct was in pursuit of an alleged debt/s. The claimant will show that her current account was funded and not outside of its agreed limits from January 8 th 2008 until May 8 th 2008 and that further defaults to other accounts were caused by the defendant. Furthermore, the defendant knew or should have known that their course of conduct was causing harm and was unlikely to resolve the situation.
On or around 24 th December 2007 and again on 3 rd January 2008 and again on 14 January 2008 letters were posted to the claimant at her parents address. (As detailed above in Data Particulars)
On January 9 th 2008 the defendant attempted to contact the claimant eight times in a twelve hour period. Five of these calls were answered two of these by the claimant and three by her parents. The claimant avers that this communication was oppressive and unacceptable and that she was particularly aggrieved by it."
After various interlocutory skirmishes, the details of which are not relevant, the bank served a defence and counter-claim on 29 November 2011. In its defence the bank admitted making a large number of phone calls to the claimant, but denied that these amounted to harassment. The bank averred that these were reasonable attempts to contact its customer. The bank also counterclaimed for outstanding sums due on the three accounts. These amounted to £10,941.37 plus interest.
The action came on for trial before HHJ Shaun Spencer QC at the Bradford County Court in February 2012. The claimant duly presented her case and gave evidence. Mr James Counsell, instructed by DLA Piper UK LLP, represented the bank. The judge delivered his reserved judgment on 10 February 2012. He concluded that the bank's phone calls did indeed constitute harassment. He awarded damages to be assessed. The judge also gave judgment in favour of the defendant for the sum claimed in the counterclaim. There has been no dispute about the counterclaim.
The hearing to assess damages took place at Bradford County Court on 27 September 2012. The judge assessed the bank's liability for damages in the sum of £7,500. I would briefly summarise the judge's reasoning in relation to quantum as follows. The judge concluded that some of the calls were intimidatory and that those calls must be viewed in the context of the totality of the calls, which were very frequent and on most days of the week. The judge regarded the claimant as a genuine witness. He noted her distress when the recordings of certain calls were played in court. He regarded that distress as genuine. The judge had regard to the authorities on quantum to which I shall refer a little later, and he concluded that the proper measure of damages was £7,500.
The bank was aggrieved by the judge's decisions, both on liability and quantum. Accordingly, the bank has appealed to the Court of Appeal.
By an appellant's notice dated 17 October 2012, the bank appealed against the judge's decisions on liability and quantum. In relation to liability, I would summarise the grounds of appeal set out in the appellant's notice as follows:
(1) The judge failed to take into account the context in which the calls were made, in particular the fact that the bank had good reason to telephone the claimant.
(2) The staff who rang the claimant were civil and polite.
(3) The judge was selective in the extracts from phone call transcripts which he cited in his judgment.
(4) The judge failed to apply the guidance in the authorities.
(5) The judge failed to address the question of whether the bank knew or ought to have known that its conduct amounted to harassment.
In relation to quantum of damages, the grounds of appeal relate the circumstances of the case at some length...
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