Labour & European Law Review Weekly Issue 441 14 October 2015
The Protection from Harassment Act 1997 states that people must not pursue a “course of conduct” which they know (or ought to know) amounts to harassment of a victim. In Levi v Bates and ors the Court of Appeal held that there was no reason why a “victim of collateral damage” could not also sue for harm foreseeably caused by the course of conduct.
Mr Levi was a member of a consortium of local business people which took over Leeds United Football Club in a bid to save it from financial collapse. The club was ultimately rescued by another company led by Mr Bates.
Mr Bates, who harboured a grudge against Mr Levi about money that he allegedly owed him, subsequently wrote a number of articles in the club’s match programmes calling Mr Levi a “spiv” and a “shyster”, among other things, and accusing him of blackmail. He also published Mr and Mrs Levi’s home address; the fact that their telephone number was “in the book”; and insinuated that the couple had separated.
As a result, Mr and Mrs Levi had to have a special response alarm fitted at their home in case any disgruntled Leeds United supporters turned up there. They were also supplied with personal radio activated alarms to wear around their necks and advised by the police not to leave the house.
County Court decision
Mr Levi brought a successful libel action against Mr Bates and was awarded damages. He then brought court proceedings for harassment under the Protection from Harassment Act 1997 and was awarded further damages.
Mrs Levi also alleged that she had suffered real psychological harm as a result of Mr Bates’ conduct. However, the judge held that as only one of the articles was “targeted” against her (the insinuation that the couple had separated), it could not constitute a “course of conduct” as the 1997 Act required conduct to have occurred on at least two occasions.
Decision of Court of Appeal
The Court of Appeal first noted that the concept of “targeting” did not appear in the Act itself but had emerged from judicial interpretation of the tort (or civil wrong) of harassment in Thomas v News Group Newspapers Ltd when it was described as conduct “targeted at an individual”. This was subsequently interpreted as conduct “targeted at the claimant” in the case of Dowson and ors v Chief Constable of Northumbria Police. In the view of the Court of Appeal this was “a step too far”.
It held that the purpose of the passage in Thomas was not designed to identify who could complain of harassment but rather to draw out the concept of “targeted behaviour”. In other words, behaviour aimed at someone as opposed to behaviour that merely causes alarm or distress generally. The only express requirement under the Act was that the claimant should be a “victim” of the conduct. The Court of Appeal therefore concluded that there was no reason why a “victim of collateral damage” from the same conduct could not sue for harm foreseeably caused by the course of targeted conduct.
The county court judge was therefore wrong to exclude Mrs Levi from making a claim as two of the articles invited thousands of club supporters to intervene in a hostile manner, at her home, about a business dispute between her husband and Mr. Bates. If that had happened, it was plainly foreseeable that it would have caused her alarm and distress. It was equally foreseeable that publishing the incitement in the programme would cause her alarm and distress because of a fear that it might happen. The Court therefore awarded her £6,000 in damages.
Any fear that this case will open the floodgates for cases being brought by claimants who are not the “targeted” victim, is unfounded. The Court made it clear that any person who is distressed or alarmed out of sympathy for the targeted victim would be unlikely to have a good claim by way of collateral damage. To succeed the person in question would have to show that he or she was foreseeably and directly harmed by the targeted conduct. In this case it was the fact that the offending conduct was directed towards Mrs Levi’s home that meant she had a claim.
In terms of the workplace this case is unlikely to be that relevant. Usually any harassment of an employee is confined to the workplace. Any damage caused to a third party such as a family member is likely to be limited to sympathy for the victim and such a case would very likely fail on the basis that it was not reasonably foreseeable.