Full case report

Cray v Hancock & Another

Reference 04/11/2005
Court Queen's Bench Division

Judge His Honour John Previté QC

Date of Judgment 4 Nov 2005


Summary

Libel – Publication – Justification – Harassment – Protection from Harassment Act 1997 – Damages – Injunction – Negligence – Breach of Duty – Solicitor


Facts

The Claimant was a solicitor who had acted for the Defendants, Mr & Mrs Hancock, in a dispute with a bathroom firm. In April 2003, Mrs Hancock terminated the instructions complaining about delay in the execution of a consent order and the level of the Claimant’s firm’s fees. In early January Mr Hancock sent a letter and two faxes to the Claimant’s offices which were seen by other members of the Claimant’s firm. After that, the Claimant contended that Mr Hancock had engaged on a 2-year campaign of harassment by sending e-mails and letters (mostly anonymously) and by posting material, again anonymously on various websites and Internet forums. A claim for libel and harassment was commenced by the Claimant in August 2003 and Mr & Mrs Hancock counterclaimed for negligence in the conduct of their case against the bathroom firm.


Issue

(1) whether the Claimant was responsible for publication to people other than the Claimant at the Claimant’s firm;
(2) the meaning of the words complained of;
(3) whether the meaning found was true;
(4) whether the acts complained of were a course of conduct amounting to harassment;
(5) the approach to be adopted in relation to the standard of proof and on that basis whether the Claimant was responsible for the anonymous acts;
(6) damages;
(7) whether the Defendants had shown that the Claimant had been negligent in his handling of the dispute with the bathroom firm.


Held

Finding for the Claimant and dismissing the Counterclaim:
(1) the letter and fax had both been sent to the firm without restriction as to who could view them; the First Defendant was therefore responsible for publication to the 3 other people who saw them; (2) they alleged systematic dishonest overcharging by the Claimant; (3) the plea of justification wholly failed to meet this charge; the defence did not even establish the lower meaning relied upon in the Defence; (4) the acts complained of were, as the First Defendant had admitted, “oppressive, unreasonable and menacing”, and represented a course of conduct that amounted to harassment; (5) the standard of proof was the balance of probabilities (as explained by Lord Nicholls in In re H [1996] AC 563, 586) and on this basis the Court was satisfied that Mr Hancock was behind the anonymous acts complained of; (6) £9,000 for the libel claims and £10,000 for the harassment; (7) there was no evidence to support the Counterclaim.


Comment

This case is an interesting for its treatment of harassment and quantum. Harassment conducted anonymously – particularly where it is conducted (as in this case) via e-mail and the Internet – is perhaps the most difficult to tackle. In this case a 2-year campaign was found by the Court to have been conducted by the First Defendant, Mr Hancock. His answer was to have denied involvement in the anonymous acts. As such, the balance and standard of proof were critical in the case. The civil standard – balance of probabilities – required the Court to be satisfied that it was more likely than not the First Defendant was responsible for the anonymous acts complained of. In assessing the evidence the Court adopted the approach recommended in In re H [1996] AC 563, 586 and in Phipson on Evidence; that the Court should assess two hypotheses advanced to explain the relevant acts to ascertain which was the more credible.


Instructing Solicitors

Martin Cray & Co for the Claimant


Links

Mixed Fortunes for Lawyers in Libel Battles - Law Society Gazette