Lisle-Mainwaring v Associated Newspapers Limited

C was the owner of a building in Kensington which attracted media attention when she painted it with red and white stripes. The property when bought by the C had been an office building and she applied for planning permission to turn it into a residential property. Planning permission was initially refused, then granted on appeal. The appeal was quashed on judicial review by an order of Supperstone J on 17.2.15. On 2.4.15, the property was painted with red and white stripes. On 24.4.16, the local authority served a notice on C requiring her to remove the paint under s.215 of the Town & Country Planning Act 1990 which she subsequently appealed.

D published various articles about C, the property, the paint and the removal notice in the Daily Mail and on the Mail Online. There were a series of approaches from D’s journalists to C and her representatives (planning agent and two firms of solicitors) for the purposes of seeking her comment on matters intended to be included in the articles.

C issued harassment proceedings against D relying on 9 articles, publication of three photographs (including one taken outside court) and 10 journalistic contacts (the approaches for the purposes of seeking comment).

D applied for summary judgment and/or to strike out the claim.

C had issued separate proceedings for libel against D in respect of two of the articles in issue in the harassment action. D had made an offer of amends in the libel proceedings which was accepted. There was a hearing before HHJ Parkes QC to determine the amount to be paid by way of compensation. [The 5RB case report of the libel judgment can be found here.]

Whether the conduct complained passed the required statutory threshold to amount to harassment, namely whether (a) a reasonable person would regard it as harassment and (b) it met the required threshold of gravity.

Whether the claim was an abuse of process in accordance with the principles set out in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946.

Whether the claim or part of the claim should be struck out.

Striking out the instances of journalistic contact relied on but declining summary judgment in respect of the articles, the Court held:

1. There was nothing oppressive, unreasonable or exceptional about the journalist’s behaviour. It was well within the limits of normal rough and tumble which people must expect in a free society, especially those who choose to attract attention to themselves by carrying out controversial acts. The journalists’ conduct was a tribute to Reynolds and the higher professional standards it has encouraged. The photograph taken outside Court was of an entirely usual kind and did not merit characterisation of harassment.
2. It was arguable that the contents of the published articles constituted actionable harassment in that allegations were made which were defamatory (these were the subject of the libel action referred to above); there was publication of two photographs which had no connection with any aspect of the stories and various inaccuracies were complained of. It could not be said they were incapable of constituting harassment.
3. It could not be said with certainty that the whole of the potential harassment damages are already covered by the libel damages. The libel damages were reduced by 40% to take account of the  offer of amends which would appear to have no application to harassment so full compensation for hurt feelings may not have been given.

The case illustrates the importance of the threshold of seriousness required to establish harassment as identified by the House of Lords in  Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224.  The finding that contacts made by journalists for the purposes of putting matters to the subject of the story did not amount to harassment but rather fall within the boundary of normal life illustrates the potential narrowness of the cause of action of harassment in publication cases.