Full case report

Al Hamadani v Al Khafaf and others

Reference [2015] EWHC 38 (QB)
Court High Court (Queen’s Bench Division)

Judge Warby J

Date of Judgment 14 Jan 2015


Summary

Protection from Harassment Act 1997 – Course of conduct – Joint enterprise – Injunctions – Relief from sanctions – witness statements


Facts

The Cs were brothers and antique dealers. They brought a claim against five Defendants which arose from a dispute between the Cs and D1 (another antique dealer) over a debt. D1 was alleged to have instigated harassing conduct, including threats and threatening visits to the Cs’ home, culminating in D2, D3, D4 and D5 visiting the’ home on 12 March 2014 and threatening and intimidating the Cs causing them stress and anxiety. Some 3 weeks later, shortly after the claim form and interim injunction had been served on D5, an individual contacted C1 and sought to act as an intermediary on behalf of the Ds. He then withdrew, telling C1 that the Ds had told him that “they will be dealing with you and your brother”. The Cs initially obtained an interim injunction against all 5 Ds, and then settled the claim with all of the Ds except D3. The matter proceeded to trial and the Cs sought a permanent injunction to prevent future harassment by D3. They did not seek damages.

The court was also asked to determine a procedural matter at trial. The Cs sought to rely on evidence which was served on D3 20 days after the hearing of the claim. D3 had not filed an acknowledgment of service and was therefore not allowed to take part in the hearing of the claim.


Issue

  1. Were the Cs entitled to relief from sanctions for serving evidence 20 days after the prescribed date?
  2. Was D3’s involvement sufficient for him to be considered part of a joint venture?
  3. Did the actions of the joint venture amount to harassment?
  4. Were the Cs entitled to an injunction?

Held

Granting a permanent injunction against D3:

1. Given D3’s absence from the trial it was especially appropriate for the court to take a strict approach to ensuring compliance with the applicable rules. However, applying the factors set out in Denton v TH White Ltd [2014] EWCA Civ 906, the Cs would be granted relief from sanctions. In respect of some of the evidence, the failure to comply was purely technical and of no consequence. In respect of one witness statement the breach was serious and significant, but the delay was less than 3 weeks and the evidence was served more than two months before the trial. D3 had therefore had the opportunity to assess the evidence well in advance of the trial, and the orderly and proportionate progress of the litigation had not been threatened.

2. D3 was aiding and abetting D4, the group leader, on the final visit to the Cs’ home on 12 March 2014. Accordingly, by virtue of s. 7(3A) of the Protection from Harassment Act 1997 (PHA), D4’s conduct, knowledge and purposes would be attributed to D3. D5’s conduct was also reasonably foreseeable as part of the process of seeking to intimidate.

3. The group’s conduct on 12 March 2014 crossed the threshold of seriousness for the purposes of the PHA. In any event, D3’s own conduct met the threshold of seriousness. The conduct in which he knowingly participated, in entering the claimants’ home at night, uninvited and with the use of deception, with a view to intimidation was conduct objectively calculated to cause alarm or distress, and certainly caused distress. A reasonable person in D3’s position would have understood the conduct of the group to be oppressive, intimidating and harassing, and to some extent D3 had understood the group’s conduct to be unacceptable.

4. An injunction would be granted. It would be artificial to view the events of 12 March 2014 as a series of occasions making up a course of conduct. It was conduct on a single occasion and for that reason it would not amount to a sufficient basis for a claim for damages under the PHA. But it was enough to justify a reasonable apprehension of further similar conduct which would, when taken together with the conduct of 12 March was enough to justify the interim injunction which was initially sought and granted. Further, D3’s behaviour on 12 March would also have been enough, in the absence of any expression of contrition or recantation or undertaking or promise not to repeat by D3, to justify a permanent order in respect of both of the Cs. However, this was followed by the threatening message sent to C1 by the individual on behalf of all of the Ds. This was objectively likely to cause alarm and distress, was oppressive and unacceptable, and would have justified criminal proceedings. By this point, D3 had been party to a course of conduct within the meaning of the PHA as far as C1 was concerned, and C1 therefore had a complete cause of action for damages under the PHA had he wished to pursue it. This second incident strengthened the case of both Cs for a permanent injunction, and would by itself be sufficient to support a claim for an injunction.


Comment

This judgment is an informative example of the court’s approach to claims under the PHA, particularly in relation to (1) the necessary level of involvement that a defendant must have in order to be held responsible for another person’s conduct under s. 7(3A), (2) the threshold of seriousness that must be crossed, (3) whether a defendant’s actions amount to a course of conduct, and (4) the basis upon which a permanent injunction can be sought. In relation to the permanent injunctions, Warby J made clear at paragraph 49 of the judgment that it is not necessary to establish that a defendant has already engaged in a course of conduct if it can be shown that he or she may do so unless restrained. As an illustration of this, Warby J stated (at paragraphs 53 and 54) that the each of the two incidents in which D3 was involved was enough, on its own, to support a claim by the Cs for a permanent injunction.


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Instructing Solicitors

Mackrell Turner Garrett for the Claimant; no appearance for the Defendant