Thomas v News Group Newspapers Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS,LORD JUSTICE JONATHAN PARKER,LORD MUSTILL |
| Judgment Date | 18 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1233 |
| Docket Number | B2/01/0695 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2001 |
[2001] EWCA Civ 1233
The Master Of The Rolls
(Lord Phillips)
Lord Justice Jonathan Parker
Lord Mustill
B2/01/0695
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)
Royal Courts of Justice
Strand
London WC2A 2LL
MR DESMOND BROWNE QC and MR MATTHEW NICKLIN (Instructed by Messrs Farrer & Co, London, WC2A 3LH) appeared on behalf of the Appellant
MR DAVID PANNICK QC and MR ANTHONY HUDSON (Instructed by North Lambeth Law Centre, London, SE11 4DS) appeared on behalf of the Respondent
LORD PHILLIPS, MR: This is an appeal from the judgment of His Honour Judge Cox sitting in Lambeth County Court on 7 March 2001. By that judgment he refused an application by the appellant to strike out the particulars of claim under Part 3 of the Civil Procedure Rules ("CPR"), or to give judgment in their favour under Part 24. The application turned on the meaning of "harassment" under the Protection from Harassment Act 1997 ("the 1997 Act"). Judge Cox recognised that this issue was one of general importance and gave permission to appeal. He directed that the appeal should be transferred to this court pursuant to CPR Part 52.14(1).
Under CPR 3.4(2) the court may strike out a particulars of claim where satisfied that it discloses no reasonable grounds for bringing the claim. Under CPR Part 24, the court may give summary judgment in favour of the defendant where satisfied that the claim has no real prospect of success and that there is no other compelling reason why the case should be disposed of at a trial.
The appellants contend that the judge should have found both tests satisfied in that the case pleaded by the respondent disclosed no cause of action and was bound to fail. In this case the appellants had taken out their strike-out application before filing a defence. In such circumstances there is little to choose in practice between the two tests. The court proceeds on the assumption that the facts alleged by the claimants will be proved at the trial and considers whether, on that premise, the claim has any realistic prospect of success. If it does, it is permitted to proceed to trial; if it does not it is struck out unless there is some other compelling reason why the case should go to trial.
Before summarising the facts, it is helpful to set out the material provisions of the 1997 Act. These are 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.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(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.
2. Offence of Harassment
(1)A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
The section then goes on to deal with the penalty.
"3. Civil remedy:
(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 resulting from the harassment.
.
7. Interpretation of this group of sections
(1) This section applies to the interpretation of sections 1 to 5. (2) References to harassing a person include alarming the person or causing the person distress.
(3) A 'course of conduct' must involve conduct on at least two occasions.
(4) 'Conduct' includes speech."
The Facts
On 6 July 2000 the first respondents published in their newspaper "The Sun" an article written by the second respondent. It was headed "Beyond a Joke Fury As Police Sarges Are Busted After Refugee Jest". The article read:
"Two police sergeants have been demoted to constables over a 'private' remark about an asylum-seeker. Mark Pursey and John Saunders also face losing a total of more than £100,000 after their pay and pensions were cut.
They were carpeted by bosses after a black clerk at their station complained about the way they treated a Somali woman trying to reach an asylum centre in Croydon, South London.
The clerk claimed she overheard racist jokes about the Somali woman who was not in the room at the time.
The clerk alleged Saunders, 42, said:
'She found her way 8,000 miles here from Somalia surely she can find her way f
f***ing back'.
But Saunders insisted he only said:
'She found her way here 8,000 miles from Somalia surely she can find her way four miles to Croydon'.
A fellow cop said last night: 'It was essentially light-hearted banter in private and the Somali never heard it. This is political correctness gone mad.'
The incident happened last July at Bishopsgate in the City of London.
The Somali called Muna Ahmed said she had been brought to England from France by a man who then robbed her and stole her passport.
She was given meals as cops arranged for her to get to Croydon and gave her money for fares more than many UK forces would have done.
Pursey and two other officers were in an office away from the front desk discussing transport arrangements for the woman when Saunders arrived.
According to clerk Esther Thomas he then made his racist remark.
She told Pursey: 'If she was a blonde 6ft Australian you would have treated her differently'. Pursey replied: 'I'd have taken her out to dinner'. She hit back: 'You'd like t5o shoot us all'. Pursey said: 'I'd have you shot if you don't get on with your work'.
Esther Thomas reported the exchange to her bosses.
And last month the cops were found guilty of 'behaving in a derisive and racially discriminatory manner'.
Lose
Dad-of-two Pursey was also convicted of two procedural lapses.
The pair, who plan to appeal, were reduced to PCs and their annual salaries were slashed by £6,000 a piece. Their pensions will also be reduced.
Dad-of-two Saunders hoped to hold his rank for nine more years and will now lose £54,000. Pursey planned to serve another six and will lose £36,000.
A woman cop was also found guilty and fined a maximum £7000 after saying of plans to help the Somali: 'Are we running a taxi service?' A fourth officer was cleared."
This article caused a number of readers to write to The Sun. Extracts from their letters were published in the edition of 12 July under the heading:
"Don't punish cops over a joke made in private
Beyond a Joke
Fury as police sarges are busted after refugee jest
The way we told it . our story about demoted officers
The Big Issue."
The letters were introduced by the following comment:
"You were furious over our story about two police sergeants demoted for racism after joking about a Somali woman who wanted help getting to an asylum centre.
The crack 'She found her way here 8,000 miles from Somalia, surely she can find her way four miles to Croydon' was overheard and reported by a clerk at their station in London. Here are some of your views."
I quote the more relevant extracts from the letters:
"The treatment of these officers is diabolical. Had it been two black officers and a white asylum seeker it would have been dismissed as the trivial incident it was.
Racism is an evil that must be stamped out but it won't be destroyed if it is promoted; and that is what these liberal-minded witch finders are doing by crying racism where it doesn't exist."
"If the joke had been directed at a white person, no action would have been taken. If the politically correct brigade are saying that black people are less able to laugh at themselves than whites, then that in itself is racist."
"Has the clerk who reported these two sergeants never witnessed the abuse police officers suffer in the course of their duties?
Or is that all right for them to take? I'm disgusted at the treatment of these officers."
"Is it any wonder that police morale is so low when two respectable police sergeants are about to lose £100,000 in wages and pensions because a clerk did not like a comment she overheard?
By her actions, this woman has done harm to the working relationship between black and white people. While not condoning racism, sense must prevail."
"Don't the police authorities realise they are only putting our backs up even more when they demote two sergeants for making a comment about a black refugee woman? If they had said it about a white person, nothing would have been done."
On 14 July a follow-up article was published in The Sun, again written by Simon Hughes, which included the following passage about the three officers who had been disciplined:
"All three were hauled in front of a disciplinary tribunal after a black civilian clerk complained about a series of exchanges at Bishopsgate last July."
The article went on to repeat part of what had appeared in the initial article.
The respondent's Statement of Case, based on these publications, reads as follows:
"1. On Thursday 6 July the Sun Newspapers, owned and controlled by News Group International Ltd,...
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