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Iqbal v Dean Manson Solicitors, Court of Appeal, 15 February 2011

25 February 2011
The issues

Protection from Harassment Act – whether claim can be brought against a Partnership under the Act.

The facts

Mr Iqbal used to be employed by Dean Manson, a firm of solicitors. He brought a claim under the Protection from Harassment Act against his former employers. In particular he complained of three letters which he said constituted a course of conduct amounting to harassment within the terms of the Act.

Between February and March 2006 he had worked part-time as an assistant solicitor for Dean Manson. On the 31st March 2006 he ceased employment. When he was working for them he worked on a file in respect of a Mr and Mrs Tahir. A dispute arose as to fees owed and in 2009 Dean Manson issued proceedings in the Leeds County Court against a Mr Butt, an alleged guarantor of those fees on behalf of the Tahir’s. Mr Butt instructed Mr Iqbal, who was now running his own firm of solicitors under the name Ahmads. It was in this context that Dean Manson wrote a series of letters to Ahmads for Mr Iqbal’s attention. The first letter raised “a few questions in relation to your integrity as a solicitor acting in this matter, in particular, whether you are satisfied … you can act independently and impartially”. It raised a series of questions in respect of whether or not his departure from Dean Manson was amicable or whether any issues in relation to employment and departure were still outstanding.

The second letter raised “serious conflicts and conduct issues” on Mr Iqbal’s part since his departure from Dean Manson. It alleged that Mr Iqbal had been summarily dismissed due to his insubordination and reckless conduct. It claimed that Mr Iqbal had intentionally taken instructions in order to “set (sic) scores because of your personal vendetta with the firm”. It accused him of poaching and inciting clients of the firm to initiate malicious complaints. A copy of this letter was sent to the Leeds County Court by Dean Manson.

The third letter, also copied to the Leeds County Court, made allegations in respect of a former Partner of Ahmeds and connected allegations of “misleading the Law Society and general public, unbefitting of the legal profession”.

Mr Iqbal commenced his claim in the Croydon County Court. In July 2009 Dean Manson applied to strike out the claim. The Judge found that the three letters disclosed no credible cause of action and could not be construed as harassment under the Act. The Judge also considered the nature of Dean Manson’s Defence, which was relied upon by the Claimant as containing other instances of harassment – in particular, allegations of bigamy and immigration fraud.

Permission to Appeal was granted by Mr Justice Eady, who found however that the first two letters could not amount to harassment but the third might. He also found that the Partnership could not be a “person” within the Act, because of difficult questions arising as to mens rea.

The Appeal
Four questions arose:-
1. What was the difference between the third letter and the first two letters? Were all or none of the letters capable of constituting harassment?
2. Even if the first two letters by themselves were not capable of constituting harassment, could they amount, together with the third letter, to a ‘course of conduct’ within the meaning of the Act?
3. Could the Defence be relied upon as evidence in a ‘course of conduct’ within the Act? And did it matter that it post-dated the Claim Form?
4. Could a Partnership be a Defendant to a civil action under Section 3 of the Act?

Issue One
Each of the three letters was capable of amounting to an act of harassment. The Court was rightly concerned not to set up a situation whereby every complaint between lawyers as to the conduct of litigation was arguably a matter of harassment within the Act. It had to be rare indeed that such complaints, even if in the heat of battle they went too far, could arguably fall foul of the Act. However, these three letters, particularly when viewed in the light of each other and especially the last two, arguably amounted to a deliberate attack on the professional and personal integrity of Mr Iqbal in an attempt to pressurise him by his exposure to his client or the Court into declining to act for Mr Butt. Each of these letters considered side by side evidenced a campaign of harassment and were arguably capable of causing alarm or distress. They were arguably unreasonable or oppressive and unreasonable or oppressive and unacceptable or genuinely offensive and unacceptable. A professional man’s integrity was the lifeblood of his vocation. If it was deliberately and wrongly attacked, whether out of self-interest or malice, a potential claim lay under the Act.

Issue Two
Since the Court had found that each of the letters were capable of constituting harassment, this issue did not arise. However, it had been argued and the Court would give its opinion.

The Act was concerned with a course of conduct. In the case of a single person victim there had to be at least two occasions in relation to that person. It was not said however that those two occasions must individually, standing by themselves, amount to harassment. The Judge erred in failing to ask himself in the light of his finding as to the third letter whether the three letters as a whole could amount to a relevant course of conduct. It was difficult to see why they could not.

Issue Three – Could the Defence be relied upon?
It was not necessary to decide this question and the Court would not do so. However, the Court would merely comment that whatever the hardships of litigation, it was not the occasion for irrelevant and abusive dirt to be thrown as part of the malicious campaign. Just as even the freedom of the press might be abused in a rare case so even litigation, whose natural contentiousness required its own freedom of speech, could exceptionally be abused. The Court would however deplore satellite litigation.

Issue Four – Whether the Partnership can be a Defendant?
The Judge had been wrong to take the view that a Partnership could not be a Defendant. In Majrowski, the Court clearly contemplated that “person” as regards the Defendant could include a corporate body. If that was the case it would be hard to understand why a Defendant could not be an unincorporated body as well. Whatever the financial consequences might be for individual Partners, the Partnership might be made a Defendant to a claim under the Act to liability for the statutory tort of harassment.

Appeal allowed.

Comments

This is potentially an alarming decision as, on the face of it, the Court of Appeal’s comments, albeit obiter, on “course of conduct” somewhat dilutes the requirements of the Act for, as it appears to have been customarily taken, two acts which in themselves amount to harassment. The Court would appear in this case to have contemplated a claim that would succeed with one act of clear harassment being sufficient to justify a claim in the context of a series of other events, the whole amounting to a course of conduct.

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