Reference:  EWCA Civ 206
Court: Court of Appeal
Judge: Longmore, Ryder, and Briggs LJJ
Date of judgment: 12 Mar 2015
Summary: Protection from Harassment Act 1997 – targeting – speech torts – intention
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Appearances: Jacob Dean (Respondent)
Instructing Solicitors: Ford & Warren for the Appellants; Carter-Ruck for the First Respondent; Brandsmiths for the Second Respondent; The Third Respondent did not appear and was not represented.
The first appellant, Mr L, had – along with the first respondent B – been a director of the second respondent, the football club LUFC. Mr L and B had fallen out, resulting in years of litigation. B had published (by articles in the LUFC match-day programmes, and by broadcasting via the third respondent radio station, YR) his version of his feud with Mr L. By trial, ten publications were cited, and given letters (a) to (j) accordingly. Mr L had earlier successfully sued B for libel in respect of three of these publications.
Two of the publications by B had insinuated that fans of LUFC should contact Mr L at his home: publication (d) had included Mr L’s home address, and publication (e) had noted that Mr L’s home telephone number was in the phone book. The relevant sentence of publication (e) had been blacked out, but it was disputed whether this prevented all publishees from reading it.
Mr L and his wife Mrs L, sued B for harassment contrary to the Protection from Harassment Act 1997. After trial before HHJ Gosnell in the Leeds County Court, Mr L succeeded and was awarded £10,000 damages, but Mrs L did not succeed, on the basis that only one publication (publication (i)) was targeted against her: all the publications were targeted by B at Mr L. Critically, HHJ Gosnell found that because (d) and (e) were not targeted against Mrs L, they could not constitute one of the two acts required to give rise to a course of conduct capable of being harassment against her.
Mr and Mrs L appealed on the issue of liability, and on costs.
Was ‘targeting’ of the Claimant a necessary element in the tort of harassment under the Protection from Harassment Act 1997?
Allowing the appeal:
(1) Targeting was not a part of the statutory test: it had (rightly) been imported by the judiciary into the meaning of the term ‘harassment’ (see Lord Phillips MR in Thomas v News Group Newspapers  EWCA Civ 1233 at  – ).
(2) However, the definition had mutated over time from conduct ‘targeted at an individual’ into conduct ‘targeted at the claimant’ (see Simon J in Dowson v Chief Constable of Northumbria Police  EWHC 2612 (QB) at ). The Court of Appeal disapproved this development, holding that it was not a requirement of the statutory tort that the claimant be the target (or even ‘a’ target) of the perpetrator’s conduct.
(3) Untargeted conduct could not give rise to harassment, but behaviour targeted at an individual, which foreseeably caused alarm and/or distress to a third-party, would give rise to a right of action in harassment to the third-party as well as the person targeted. The third-party would also be a ‘victim’. However, the third-party must themselves experience (or anticipate) alarm or distress: sympathy for the person targeted will not be sufficient.
Mrs L’s claim therefore succeeded and she was awarded £6,000 in damages, but not the injunction (Mr L’s 2-year injunction having expired without breach).
The decision is of interest because it changes the law on ‘targeting’ in the tort of harassment, which is also a criminal offence under the same statutory provision. The objective element of the mens rea means that a ‘victim’ can now be anyone to whom alarm or distress were objectively foreseeable, as long as the conduct was targeted at someone. This will (for example) protect the new partners, and families/co-habitees, of those targeted by a former partner.
The Article 10 implications of a looser test for ‘targeting’ may be significant, in that speech torts can ‘target’ an individual both by being directed to them, but also by speaking about them.
The Court of Appeal has also confirmed that two acts are necessary, but not necessarily sufficient, for a course of conduct amounting to harassment.
A further matter that arose from the procedural history of the case is that, notwithstanding that Protection from Harassment Act 1997 proceedings must be brought under the CPR Part 8 procedure (CPR r.65.28(1)(a)), where they are transferred to the CPR Part 7 procedure (such as for trial on disputed facts), the routes of appeal from the County Court will be to the Court of Appeal (as a Part 7 claim) not to the High Court (as a Part 8 claim).