Ferguson v British Gas Trading Ltd
Reference:  EWCA Civ 46
Court: Court of Appeal (Civil Division)
Judge: Sedley, Jacob, and Lloyd LJJ
Date of judgment: 10 Feb 2009
Summary: Harassment – Protection From Harassment Act 1997 - Companies - Corporate liability – Threats to customer - Course of conduct – Knowledge – Striking out
B appealed against a refusal to strike out F’s claim for damages for unlawful harassment. B sent F, a former customer, bills which she claimed were unjustified and letters threatening to cut off her gas supply, to start legal proceedings against her, and to report her to credit rating agencies. She contacted B several times to no avail. F claimed that B’s course of conduct amounted to unlawful harassment contrary to the 1997 Act. B argued that (1) the conduct in question was not enough to amount to harassment; (2) F had failed to plead (i) that the course of conduct was directed by someone with such seniority in the company that their mind was regarded as the mind of the company itself, or (ii) the course of conduct was the responsibility of an individual employee for whose acts B was vicariously liable; consequently the claim was bound to fail.
Whether F’s claim should have been struck out at first instance on the grounds that:
(1) B’s course of conduct was insufficiently grave to amount to harassment; and/or
(2) the claim was bound to fail as a consequence of F’s failure to identify in her pleadings either the individual ‘directing mind’ of the company who was aware of the course of conduct or the individual employee who was alleged to be responsible, for whose acts B was vicariously liable.
Dimissing the appeal,
(1)It was strongly arguable that B’s conduct was capable of satisfying the test of gravity. A person would be likely to suffer real anxiety and distress if threatened in the way F was threatened.
(2) It was notable that the Act did not provide any defence for “accidental” harassment. It was difficult to think of a policy reason why large corporations should be exonerated for conduct which, if carried out by an individual, would amount to harassment. The court’s provisional view was that F had pleaded enough to allege actual knowledge of the conduct complained of.
It seemed that a company must be taken to have knowledge of material within the knowledge of its employees, even if top management knew nothing of the particular case. In any case, F did not have to prove actual knowledge as an “ought to know” case would suffice.
The two points of interest here are firstly that the Court of Appeal accepted that there can be liability for harassment even if the material is automatically generated such, as in this case, by computer. Secondly, when attempting to fix liability to a corporation for harassment, the Court found that it is not necessary to identify a directing mind of the company who is aware of the course of conduct complained of, unlike the requirement for establishing malice in libel against a corporate defendant.