Harassment and 'collateral damage'
(1) Melvyn Levi (2) Carole Levi -v- (1) Kenneth Bates (2) Leeds United Football Club Limited (3) Yorkshire Radio Limited [2015] EWCA Civ 206
Overview
The Court of Appeal has held that a person who has been harmed by harassment directed at someone else may still seek protection under the remedies provided by the Protection from Harassment Act 2007.
This ruling departed from the first instance judgment that a course of conduct amounting to harassment must be 'targeted' at the claimant. Giving the lead judgment, Briggs LJ held that although a course of conduct may be targeted at person A, it may cause just as much alarm and distress to person B, even though person B is not the intended target of the perpetrator's misconduct. Accordingly, there was nothing in the Harassment Act to suggest that person B could not bring a claim for harassment against the perpetrator.
Facts
The Claimants were husband and wife. Mr Levi, the First Claimant, had been involved in a takeover of Leeds United football club in 2004. The club was subsequently taken over again by the First Respondent (Mr Bates), who was also the majority shareholder of the Second and Third Respondents. Mr Levi's earlier affairs in the club had led Mr Bates to harbour serious grievances against him, mainly relating to debts apparently owed by Mr Levi to the club.
As owner of the club, Mr Bates was able to write a regular column in the club's official published match day programme. Between 2006 and 2011 Mr Bates namechecked Mr Levi in several of these columns, stating that Mr Levi was, inter alia, a "money grabbing spiv", a "shyster" and "totally scurrilous". In two separate articles, Mr Bates also published Mr Levi's address and telephone number on the basis that the club's fans should put questions to him.
Both Mr Levi and Mrs Levi brought a claim for harassment on the basis of the articles. Mrs Levi claimed that she had been upset and distressed about Mr Bates' articles about her husband 'on his behalf', but she was also particularly distraught about the publication of their home address and home telephone number.
Judgment
At first instance, HHJ Gosnell held that Mrs Levi could not avail herself of the remedies under the Harassment Act as she was not a 'target' of the harassment as per the judgment of Philips LJ in the House of Lords in Thomas v News Group Newspapers Limited: "The Act does not attempt to define the type of conduct that is capable of constituting harassment. "Harassment" is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable."
In the Court of Appeal, Briggs LJ held that the first instance judge had misinterpreted Philips LJ's judgment in Thomas – it was not designed to identify who can complain about harassment, but rather to explain the concept of harassment as targeted behaviour, i.e. behaviour aimed at someone rather than behaviour which merely causes distress without being aimed at anyone. Briggs LJ cited the example of a speeding motorist causing distress to pedestrians, but such behaviour would not be harassment because it is not targeted at anyone at all.
Briggs LJ held that so long as the behaviour is targeted at someone, the conduct complained of need not be targeted at the claimant if he or she is foreseeably likely to be directly distressed by it.
However, it was not enough that alarm or distress suffered by the claimant was only out of sympathy for the actual target of the conduct. The claimant must actually be harassed by the conduct, to the extent that they can properly be described as victims of it.
On the facts of the case, the Court held that although Mrs Levi derived no right to claim for her sympathetic distress suffered because of Mr Bates' campaign against her husband, she did derive a claim from the two separate articles which published Mr Levi's address and home telephone number (shared with Mrs Levi). This amounted to a sufficient course of conduct of harassment as those articles were intended to incite club supporters to direct hostile acts at Mr and Mrs Levi's home. Mrs Levi was accordingly awarded £6,000 in damages.
Comment
This was a measured and considered ruling which broadens the class of potential claimants who can bring a claim under the Harassment Act by virtue of being the victims of the 'collateral damage' of a perpetrator's conduct directed at another individual. It remains to be seen whether this will 'open the floodgates' to potential claimants, but Briggs LJ's ruling that mere 'sympathy distress' is not actionable should serve to prevent an inordinate widening of harassment claims.