Gerrard & Anor v (1) ENRC Ltd (2) Diligence International LLC
Reference:  EWHC 3241 (QB)
Court: High Court
Judge: Mr Richard Spearman QC (sitting as a Deputy High Court Judge)
Date of judgment: 27 Nov 2020
Summary: Covert surveillance – harassment – strike out - legal professional privilege
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Adam Wolanski QC - Leading Counsel (Claimant)
Instructing Solicitors: Enyo Law (Claimants)
The First Claimant, a solicitor, was involved in extensive litigation against the First Defendant, his former client. He discovered that he had been subject to various acts of covert surveillance, mainly conducted over a four month period. He and his wife brought proceedings against the First Defendant, and the Second Defendant, an investigations agency which had admitted to carrying out some of the surveillance on the instruction of the First Defendant, in respect of that surveillance and related activities.
The Defendants sought summarily to dispose of: (1) the entirety of the Claimants’ claim for harassment pursuant to section 3 of the Protection from Harassment Act 1997 (“PHA”), and (2) various aspects of the Claimants’ case that the Defendants are not entitled to rely on litigation privilege in respect of the surveillance and other activities.
1. Can surveillance conducted covertly come within the ambit of the PHA?
2. Could the sending of a letter by solicitors during litigation notifying the other party of an intention to vary undertakings constitute conduct failing within the PHA?
3. Could the Claimants rely in a claim under the PHA upon acts (namely attempts to surveil the Claimants while on holiday) which occurred outside the jurisdiction?
4. Was it premature to determine questions relating to privilege prior to disclosure taking place?
5. Was it at least arguable that litigation privilege did not extend to documents relating to the surveillance on the grounds of (a) iniquity and (b) absence of confidentiality?
Held, dismissing the application for summary judgment/strike out and granting the Claimants’ application for permission to amend:
1. Covert surveillance could constitute harassment under the PHA, even if the defendant did not intend the surveillance to be discovered. This was because it was not necessary to prove that the defendant subjectively intended their conduct to cause distress.
2. The sending of the letters by solicitors could form part of the ‘course of conduct’. Such letters may not be caught by the immunity from suit attaching to certain conduct during legal proceedings. Further, it was not self evidently reasonable for the First Defendant to instruct solicitors to send the letters.
3. The Claimants could rely on the acts outside the jurisdiction. The preparatory components of those acts occurred within the jurisdiction, and the acts were in any event relevant to the Claimants’ case that surveillance was likely to be discovered, as well as to the Claimants’ case on iniquity.
4. The applications in relation to privilege were premature. Such issues are best resolved after disclosure lists had been exchanged.
5. The Claimants’ case as to iniquity and absence of confidentiality was at least arguable and should not be struck out.
The decision highlights uncertainties concerning the circumstances in which conduct can be said to be ‘calculated’ to cause alarm or distress under the PHA. The court held that, despite some suggestions in the authorities that the term ‘calculated’, which is found in the authorities but not within the statutory wording, imported a subjective requirement into the PHA, the test was plainly an objective one. Thus the fact the Defendants did not intend surveillance to be discovered by the Claimants was not determinative of the issue of whether their conduct could constitute harassment.
The judgment makes clear (again despite some suggestion in the authorities to the contrary) that an individual could sue under the PHA even if she had not been specifically targeted by the defendant, but was instead the victim of collateral damage.
There is also an interesting discussion of whether or not documents relating to surveillance conducted for the purpose of litigation must necessarily be privileged. The judge accepted that it was at least arguable that they were not, both because they may be caught be the iniquity exception, and because they might not in fact record anything that could properly described as confidential. The Claimants’ plea of iniquity went beyond alleging mere civil wrongdoing; and recordings of an individual’s activities may not reveal the ‘trend of advice’ between solicitor and client.
The judge rejected the Defendants’ ‘floodgates’ argument that a failure to strike out this case would have far reaching consequences for those who wish, and perhaps need, to conduct surveillance for the purpose of litigation. However there is no doubt that the judgment amply demonstrates that those engaged in surveillance, whether for litigation or otherwise, occupy legally fraught terrain.