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Ferguson v British Gas Trading Ltd, Court of Appeal, 10 February 2009

3 March 2009
The issues

Harassment – Protection from Harassment Act 1977 – unjustified bills and threatening letters.

The facts

The Claimant had been a customer of the Defendant company but switched to another company. She was sent bills which she said were unjustified. A series of letters were sent threatening legal proceedings and the cutting off of her gas supply. There were also threats that she would be reported to a credit rating agency. The Claimant contacted British Gas several times by letter and phoned them as well, but to no avail. The Claimant claimed that she had been harassed unlawfully, contrary to the Protection from Harassment Act 1977. The Defendant company argued that the conduct was not sufficiently serious because otherwise merely annoying or aggravating matters of everyday life would be criminalised. The Claimant knew, or should have known that the correspondence was computer generated and not taken seriously as if to have come from an individual. Moreover, following Tesco Supermarkets v Nattrass the Claimant had to show that the course of conduct was directed by someone with sufficient seniority in the company as to amount to a controlling mind or that the conduct was the responsibility of an individual employee for whose act the company was vicariously liable. Since neither particular was pleaded the claim had to fail. They applied to strike out. At first instance they were unsuccessful. They appealed to the Court of Appeal.

The decision

It was one of the glories of this Country that every now and then one of its citizens was prepared to take a stand against the big battalions of Government or industry. The Court considered Lisa Ferguson, the Claimant in this case, to be such a person.

In Majrowski and in Conn v Sunderland the Court had emphasised that for the purposes of the Act, harassment would be conduct of such gravity as justified the sanctions of the criminal law. On the other hand, the Court noticed that in Allen v Suffolk, the Court of Appeal had refused to strike out a claim for harassment by a tenant who had been the victim of a number of wrongly issued possession proceedings. Giving the leading Judgment, Longmore, LJ in that case had regard to the phrase “oppressive and unacceptable” as used by Lord Nichols in Majrowski.

The Court accepted that a course of conduct had to be grave before the offence or tort of harassment was proved. The only real difference between the crime under Section 2 and the tort under Section 3 was standard of proof. To prove the civil wrong of harassment it was necessary to prove the case on a balance of probabilities. To prove a crime the standard was the usual criminal one of being beyond a reasonable doubt.

It had never been suggested generally that the scope of a civil wrong was restricted because it was also a crime. What made the wrong of harassment different and special was that in life, as the Court had recognised, one has to put up with a certain amount of annoyance and that things have to be fairly severe before the law, civil of criminal, will intervene. If the test was one requiring gravity the Court was quite unable to conclude that to the impugned conduct was incapable of satisfying that test. In contrast to the Sunderland case, the Court thought in these circumstances it might be entirely proper for a prosecutor such as a Trading Standards Officer, to bring criminal proceedings in respect of a case where there had been such a period of persistent conduct and such threats as had been pleaded. For the Defendant to say that the threats should not have been taken seriously was absurd. A victim of harassment would always know that it was unjustified. The Act was there to protect people against unjustified harassment. The fact that the correspondence was computer generated was not relevant. Real people were responsible for programming and entering material into the computer. It was British Gas’ system which allowed the conduct to happen.

In respect of the “controlling mind” argument the Defendant depended on Tesco v Nattrass. However, the provisions of the Trade Descriptions Act, which concerned the Nattrass case, and the Protection from Harassment Act were quite different. Moreover, the Court had become conscious during the Hearing that they had not had as full a citation of authority about corporate liability as might be appropriate. A judicial assistant had been requested to look into the matter and had found a host of further post-Tesco v Nattrass material indicating quite strongly that it was a case confined to the language of the particular statute being considered. It was not appropriate on a strike out Application to analyse all of this material in detail. The Court was able at this stage only to provide a provisional response to this argument. It was noted that the Act did not provide any defence for “accidental” harassment, nor did it contain anything like Section 24 of the Trade Descriptions Act which had been considered in the Tesco case. The Court could not think of any policy reason why big corporations should be exonerated for conduct which, if carried out by an individual, would amount to harassment.

Ms Ferguson had to show either that British Gas knew the conduct complained of amounted to harassment or that it ought to have so known. The Claimant had pleaded enough to allege knowledge of the conduct complained of. As a matter of construction a company had to be taken to have knowledge of material within the knowledge of its employees, even if top management knew nothing of a particular case. That was particularly so where, as here, the company might be vicariously liable. There would be difficulties on showing knowledge that the conduct amounted to harassment but that would depend potentially on how frequently this sort of thing had happened and how aware senior management was aware of it. The Claimant did not have to go so far as to prove actual knowledge. An “ought to know” case would suffice.

Appeal dismissed.

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