On 25th September 2014, Elisabeth Laing J. dismissed an application for an interim injunction by the owners of Chessington World of Adventures ("CWOA"), representing their officers, employees and agents, restraining the defendant, Dr. Peter Cave, from harassing them by making damaging statements criticising safety at CWOA and other theme parks.
Dr. Cave's company had been employed to survey CWOA and had discovered many defects, which would cost some £4 million to put right. Taking the view that CWOA was not undertaking sufficient remedial work, and having been bankrupted by an unsuccessful attempt to injunct its opening in 2013, he started a campaign by, amongst other things, mass emails and setting up a website. His criticisms included "intemperate and hurtful" statements about the CEO and other individuals. The claimants contended that the campaign was without foundation and scurrilous.
The claimants could have started libel proceedings, but the rule in Bonnard v. Perryman [1891] 2 Ch. 269 would have precluded an interim injunction, in circumstances in which Dr. Cave said that his allegations were justified. They therefore started proceedings on behalf of their officers etc. alleging that Dr.Cave's actions were calculated to cause the parties they represented anxiety and distress and amounted to the tort (and crime) of harassment of individuals, contrary to the Protection from Harassment Act 1997.
Laing J. said that the case raised important issues about the lawfulness of campaigns which, if justified, are in the public interest. To what extent should such activities be restrained before it is decided whether they are justified? In what circumstances are they criminal offences under the Act? Can the parties attacked by a campaign avoid the bar on interim injunctions restraining free speech by framing their claim as a harassment, not a defamation, claim?
She held:-
(a) that the application engaged Dr. Cave's right to freedom of expression under ECHR art. 10 and that his criticisms, if correct, were in the public interest;
(b) that by HRA s. 12(3) no interim injunction for harassment could be granted unless the claimants were more likely than not to to succeed at trial, as well as the balance of convenience being in their favour;
(c) applying dicta of Lord Nicholls and Baroness Hale in Majrowski v. Guy's and St. Thomas's NHS Trust [2007] 1 A.C. 204 at [30] and [66], that only misconduct that was not merely unreasonable, but so offensive or oppressive as to sustain criminal liability was harassment within the Act.
(d) that the fact that statements that were defamatory (if untrue) were likely to cause anxiety and distress did not mean that they constituted harassment, even if they were intemperate and offensive: what was required was a course of conduct with sufficient elements of "oppression, persistence or unpleasantness" (examples of such conduct would be chasing someone with a megaphone shouting 'you are an adulterer' or flying banners from aircraft with offensive allegations over someone's house for a long period);
(e) that the statements made and circulated by Dr. Cave did not by this test, either individually or taken as a whole, amount to harassment of any of the individuals represented by the claimants, even though they included harsh personalised criticism;
(f) that sending unsolicited emails to officers, employees and agents of the claimants, other than those individuals who were criticised, did not constitute harassment ; the claimants' requests that he stop doing so could not convert such actions into harassment; and
(g) that not only was the claim not likely to succeed, it raised no serious issue to be tried.
Other cases in which claims for harassment have been based on defamatory statements (Howlett v. Holding [2006] EWHC 41(QB), ZAM v. CFW [2011] EWHC 476 (QB) and Russell Brand v. Berkie {2014] EWHC 2979 (QB)) did not involve the Bonnard rule, as the statements were clearly unjustified, and in each case they were accompanied by extreme and oppressive behaviour. The decision in this case indicates that, save in cases involving such behaviour, harassment does not provide claimants with an alternative route to an interim injunction, where such relief could not be obtained in a defamation claim.
Dr. Cave was represented by Nicholas Strauss Q.C. of One Essex Court.
Read the full text of the judgment here.