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S & D Property Investments Ltd v Nisbet Defendant (Part 20 Claimant) & French, High Court, 13 July 2009

5 August 2009
The issues

Protection from Harassment Act 1997 – Company’s vicarious liability for company Director’s conduct amounting to harassment in the collection of a debt.

The facts

One of the Claimant company’s Directors, Mr French, had made a number of loans to the Defendant, Nisbet. Subsequently, the Defendant was unable to repay the loans. Mr French suggested that he should sell a particular property to cover those liabilities and repeated that suggestion through emails, texts and phone messages. Mr Nisbet’s case was that Mr French’s actions amounted to harassment within the Act which had caused him not merely anxiety and distress but which had led to economic loss.

It was common ground that until the mid-1990’s Mr French had a reputation for extreme violence, being deeply involved with gang crime in Liverpool. It was his case however that he had put all this behind him in 1994. He had met Mr Nesbit in 1996. They had become friends and to some extent had been involved in business together. From mid-2005 there appeared to have been a lull in the relationship but in January 2007 their friendship and business relationship revived. The loans and default had subsequently occurred. Mr French pressurised Mr Nesbit to sell a particular property and Mr Nesbit eventually sent a text to Mr French saying that he wished all further communication to be via his solicitor saying “I would appreciate no further harassment to allow me to do my job which will enable me to realise cash to pay creditor including S & D.”

In December, as Mr French was continuing to negotiate with regard to a deal, Mr French expressed his anxiety that Mr Nesbit should pay the money that he thought was due to him. In his email of the 15th December 2007, which was sent a number of times over the next few days, he ended by saying “You are very fortunate to find me at a point were I refused to go backwards (the temptation to beat you to within an inch of your life i have rose above) I have turned my life around and money is no longer my be all and end all.”

Mr Nesbit’s solicitor wrote to Mr French on the 19th December 2007 objecting to the barrage of emails, texts and calls and threatening criminal civil proceedings if they did not cease. Two days later, a further phone message was left ending “if you don’t call me today, Chris, you personally, call me today and tell me that your gonna cover my losses, I’m coming for you mate.” Later the same day another message was sent ending “You’ve totally ignored me, I have been absolutely livid, absolutely livid. In fact, I’m mad enough to go to prison. So you’d better call me and tell me that your gonna cover my losses otherwise I’m really, really, gonna do something that we both regret.” Later still in that day a message was sent apologising and promising that he would not harm Mr Nesbit. A further apology was sent to the solicitor later.

In January 2008 another set of phone messages was sent which had a threatening edge. On the 6th January 2008 at 4.33pm a message was sent, concluding “That I can live with you dictating to me about what I can do and can not do and losing me over 100k who do you think you are you really that brave don’t fuck with me any longer.” Two more messages were sent on the 7th and 10th January 2008.

Later still, after a letter before action and the involvement of the police, following a visit to Mr Nesbit’s home by Mr French, Mr French went again to Mr Nesbit’s home and shouted more abuse and left a series of further phone messages, including “listen I’m not one of your white business colleagues you know, I’m a nasty nigger. A real nasty street nigger. Do you understand?”

On the 14th January 2009 he went again to Mr Nesbit’s home and shouted abuse pointing his hand toward Mr Nesbit in a gesture that imitated a gun. He was subsequently charged with threatening, abusive or insulting words or behaviour contrary to Section 4A(1) and (5) of the Public Order Act 1986 and was convicted with a conditional discharge for 18 months. The Court refused to order compensation because the complainant was indebted to the Defendant by a very large amount “also the considerable provocation by the complainant” according to the memorandum of conviction.

The decision

Until the 15th December 2007 Mr French’s behaviour did not cross the threshold of gravity necessary to amount to harassment. After that date the position changed, beginning with the email in which Mr French referred to the temptation to beat Mr Nesbit within an inch of his life. From that point, Mr French’s conduct was no longer merely unattractive and unreasonable but became oppressive and unacceptable. The visits to Mr Nesbit’s home on the 12th and 14th January 2008 being the subject of criminal conviction and whilst he was not prosecuted under the Protection from Harassment Act 1997, the acts which he was proved to have done plainly amounted to harassment within the meaning of that Act. Whether he knew or not that his conduct amounted to harassment, the Court found that he ought to have done so. A civil claim under the Act arose only if there was a course of conduct which involved conduct on at least two occasions and that condition had been plainly satisfied.

For the Claimant to succeed, anxiety had to be shown. The Court found that anxiety was not limited to conditions which amounted to psychiatric harm and that medical evidence could not be the exclusive means of proving the loss. Evidence of anxiety could come from lay witnesses – the victim of the harassment and those around the victim. The Court could also take into account what was likely to have been the effect of the harassment in question. Damages were likely to be modest in such cases. There were other areas of law where the Courts routinely awarded damages for anxiety and distress and those showed that damages were not likely to be particularly high. In this case Mr Nesbit had said that Mr French’s behaviour has had a severe impact on him, causing him to sleep poorly, attend his office infrequently, and causing him a lack of ability to concentrate. He had suffered fear. Against that had to be put the simple fact that Mr Nesbit owed Mr French well over £100,000.00. It would not be at all surprising if the money problems he had caused him to be distracted and to sleep poorly as well. On the evidence, there was a period of about a month when there was a course of conduct amounting to harassment, in late December 2007 and early January 2008. The appropriate award was £7,000.00.

As to the financial losses, applying a ‘but for’ test of causation, Mr Nesbit had not shown that the harassment had materially contributed to any financial loss.

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