Full case report
Merlin Entertainments LPC and others v Peter Cave
Reference  EWHC 3036 (QB)
Court High Court (QBD)
Judge Laing J
Date of Judgment 25 Sep 2014
Harassment – interim injunction – freedom of expression – Human Rights Act – Bonnard v Perryman
The Claimants were involved in running amusement parks, including Chessington World of Adventures. The Defendant and his company were retained in late 2012 to provide a condition survey report of the Claimants’ Park, following an accident there in June 2012. There was then a dispute over payment of the Defendant’s fee and the Defendant issued proceedings for over £80,000 in fees and also, through his company, sought an injunction to prevent the Park re-opening after the winter break. The application was refused with indemnity costs and the claim was struck out by Sharp J. The Defendant then sent a series of emails in September, October and December 2013 criticising the Claimants, and allegedly posted untrue and defamatory statements relating to the Claimants on a website about safety in January 2014. Further emails were sent by the Defendant in January, June, July and August 2014, and he also sent a letter before action to two of the Third Claimant’s employees at their home addresses in April 2014. The Claimant’s solicitors wrote at least four letters to the Defendant asking him to stop but he refused to do so. The Defendant stated that all of the 80,000 emails that he sent gave recipients the option to unsubscribe (the Claimant disputed that this was always the case), and that he only received 20 responses to them.
The Claimants sought an interim injunction under s.1(1) Protection from Harassment Act 1997.
- Was D prevented from arguing that his statements were justified as a result of estoppel on the basis of the decision of Sharp J?
- Would an injunction infringe the rule in Bonnard v Perryman?
- Should the court apply the American Cyanamid test or the test under section 12(3) of the Human Rights Act?
- Applying the appropriate test, were the Claimants entitled to an injunction?
1. The decision of Sharp J was a decision not to grant an interim injunction, not a final decision. Sharp J did not decide that D had no standing to campaign about safety, and did not prevent D from pursuing his campaign or raising the issues he had raised. No estoppel arises on the basis of that decision.
2. Nothing in the Protection from Harassment Act indicates that Parliament intended to encroach on the rule in Bonnard v Perryman. However, the rule is not a complete answer to an application for an injunction where harassment consists of repeated statements which a defendant will seek to justify at trial. The real question is whether the conduct complained of has extra elements of oppression, persistence and unpleasantness and therefore crosses the threshold referred to in the case law.
3. As stated by Lord Nicholls in Cream Holdings Limited v Banerjee  1 AC 253, the principal purpose of section 12(3) “was to buttress the protection afforded to freedom of speech at the interlocutory stage … by setting a higher threshold for the grant of interlocutory injunctions against the media”. But neither Article 10 nor section 12(3) are confined to the media and the press, and must also therefore apply to individuals who publish material which is potentially defamatory but which they intend to justify at trial. There were no special or particular grounds for departing from the general approach, i.e. that the court should be exceedingly slow to grant an interim injunction to restrain publication where the applicant has not satisfied the court that he will probably succeed at trial.
4. The course of conduct did not amount to harassment for various reasons. There was no arguable claim in respect of either the employees of the corporate Claimants or the various named individuals. In the circumstances the Claimants had not succeeded in persuading Laing J that there was a serious issue to be tried, let alone that they were more likely than not to succeed. In reaching her decision, Laing J considered the following:
(a) The corporate claimants could not aggregate examples of conduct against a disparate range of individuals and claim that all those individuals had been subject to harassment. Section 1(1) of the Protection from Harassment Act did not give corporate claimants any remedy against harassment. The mere fact of sending mass emails was not harassment; for the tort to be committed it was necessary for there to be some extra element. There was no evidence of any threatening communications. The emails contained strong criticism, but were not abusive. A blanket prohibition on any communication with, or about, the first to fourth Claimant companies’ officers, employees or agents would interfere with D’s Article 10 rights, as well as those of the employees, in circumstances where D argued that his statements were justified.
(b) Further, the mere fact that a solicitor indicates that particular conduct, if repeated, will be seen as harassment cannot convert otherwise innocuous conduct into harassment.
(c) The option to stop future emails meant that a reasonable person would not see the emails as harassment.
(d) There is a public interest in ensuring that theme parks are safe. Further, an almost inevitable consequence of occupying a position of responsibility in a plc, the business of which affects members of the public, is that at times a person will be exposed to robust, often upsetting, criticism.
(e) There was limited evidence of distress, alarm and anxiety among the employees of the Claimants. Although receiving emails to their work addresses might be annoying and irritating, it was not conduct that was grave enough to be a crime.
(f) In respect of the named individuals (including the Fifth Defendant and CEO, who had been singled out for criticism more than any other individual), although they had been subjected to harsh, personalised and possibly unreasonable criticism, this did not amount to harassment.
This case provides guidance on the test that a court will apply when deciding whether a course of conduct amounts to harassment. The Judge made clear that where a corporate body relies on section 1(1) PHA it will need to adduce evidence that the course of conduct caused alarm, anxiety and/or distress to a particular individual. The fact that the conduct needs to amount to criminal conduct also appears to have weighed heavily in the Judge’s consideration. The case is also an example of the more stringent test that is applied when the injunction sought could have an impact on the Defendant’s Article 10 rights. The flexibility of the section 12 HRA test can be appreciated by comparing this judgment with OPO v MLA  EWCA Civ 1277, where the Court of Appeal was persuaded that the possible consequences to the Claimant were so severe that it was appropriate to apply a lower standard than the “more likely than not” test.
Knights Solicitors LLP for the Claimant; Counsel acting Pro Bono for the Defendant
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