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Dowson v Chief Constable of Northumbria, High Court, 30 April 2009

14 May 2009
The issues

Protection from Harassment Act 1997 – whether and to what extent police activity exempted – striking out.

The facts

Nine police officers brought proceedings against the Chief Constable for harassment. Three of those claims were subject to applications to strike out. The claims concerned allegations of harassment in respect of the conduct of the Chief Inspector responsible for a team to which the Claimants belonged. Allegations included references to the Chief Inspector’s aggressive manner and inappropriate and unlawful policing techniques. Mr Dowson in particular claimed he had been bullied and had been made to act in an unprofessional and unlawful way. He had suffered stress, loss of status and loss of income and benefits. In particular the issue arose as to whether certain proposed amendments should be permitted. Firstly, as to whether or not they amounted to new claims of action outside the limitation period, not arising out of the same facts as those already pleaded and secondly, whether or not the conduct complained of was exempt under the Protection from Harassment Act 1997 Section 1(3)(a).

The decision

The amendments arose out of substantially the same facts as those already pleaded, save for three specific matters relating to the claims pursued by Mr Dowson and one other.

The mere fact that harassment arose in the context of preventing or detecting crime could not trigger the exemption in itself, otherwise the Act could never apply to the police force. If the Chief Constable wished to rely on the exclusion he would need to demonstrate that the course of conduct at the heart of the alleged harassment was specifically pursued for the purpose of crime prevention or detection and that would require particular evidence. As a general rule it would not be appropriate to strike out claims on the basis of the exception prior to hearing such evidence.

The Defendant had cross-Applications to strike out and / or enter Summary Judgment against three specific Claimants, Bloomfield; Combe and Miller.

It was established that in order for conduct to amount to harassment, it had to be of appropriate gravity. As had been said by Lord Nicholls in Majrowski, “To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which must sustain criminal liability under Section 2.”

Secondly, the Courts had emphasised the importance of the context in which the conduct occurred. As had been said in Conn v Sunderland City Council, conduct which might be harassment in the hospital ward, might not be harassment on the factory floor.

Thirdly, the authorities were clear that the conduct said to constitute harassment had to be targeted at the Claimant.

Fourthly, an employer would be liable for the conduct that its employee, if that conduct of that employee amounted to harassment and the acts complained of were within the scope of that person’s employment.

Fifthly, two random acts by two different officers at different times, with no pleaded connection or link between them, could not amount to a course of conduct on the part of an individual necessary to trigger liability under the Act.

In summary, there were five principles to be drawn from the reported cases:-

a) It was incumbent on the Claimant, on his pleading, to allege conduct which was arguably unreasonable.

b) The mere fact that the conduct complained of had foreseeably caused stress to an individual was not enough. The requirement to establish an arguable case of oppression and unreasonableness must also be satisfied if the claim was not to be struck out.

c) There had to be a genuinely offensive and oppressive course of conduct in which the context might well be important.

d) The conduct had to be targeted at the Claimant.

e) The conduct had to be calculated to produce alarm and distress on the part of the Claimant.

On a matter coming before it for a strike out, the Court had to scrutinise the claims carefully to see if they were worth the candle. It was not appropriate for a Court at first instance to say “Well these claims look very thin to me, but it is safer not to strike them out until there has been some (expensive) evidence”. One of the main purposes of the Civil Procedure Rules was to ensure that claims which did not have a real prospect of success were weeded out at the earliest possible stage. On a proper analysis of the evidence, the three claims advanced on behalf of DC’s Bloomfield; Combe and Miller would be struck out.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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