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28 September 2015
Case Commentary: Merlin (Claimant) v Cave (defendant)  EWHC 3036 (QB)
HARASSMENT; TORT; CRIMINAL OFFENCES
What constitutes harassment? To what extent should those activities which may be annoying and irritating be restrained by the civil courts, before the question whether they are justified has been decided? To what extent are they criminal offences?
Mrs Justice Elisabeth Laing DBE handed down judgment in the matter of Merlin (Claimant) v Cave (defendant)  EWHC 3036 (QB) on 25th September 2014.
The Claimants were four companies and one individual. The companies are involved in running amusement parks, including Chessington World of Adventures ("the Park").The claimants made an application for an interim injunction restraining the Defendant, Dr Cave, from (in short) sending mass emails and setting up websites in which he campaigns on the issue of safety in theme parks, and criticises the Claimants and other individuals (sometimes in intemperate and hurtful terms).
Mrs Justice Elisabeth Laing DBE addressed the issue of whether the claimants who contended that Dr Cave's communications with the public and with their employees were defamatory, and in breach of confidence, were entitled to stop him, before any trial, by relying on the statutory tort of harassment, or whether they should, instead, have to rely on their remedies for defamation and breach of confidence?
Dr Cave's case was that his concerns about safety were justified, and he was doing no more than exercising the right conferred by article 10 of the European Convention on Human Rights ("the ECHR") to freedom of expression.
The Protection from Harassment Act 1997, as amended ("the PHA"), among other things, makes "harassment" a tort, and a crime (sections 1, 3, and 2). Section 1(1) provides that a person must not "pursue a course of conduct (a) which amounts to harassment of another and (b) which he knows or ought to know amounts to harassment of another".
Mrs Justice Elisabeth Laing DBE stated that “If the course of conduct is reasonable, it is not harassment (see section 1). But it does not follow that conduct which is unreasonable (or unattractive, or regrettable) is necessarily harassment.”
She referred to the Majrowski case to highlight where the line determining harassment should be drawn. There Baroness Hale said, at paragraph 66, "All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the banter and badinage of life and genuinely offensive and unacceptable behaviour".
Mrs Justice Elisabeth Laing DBE stated that the real question is whether the conduct complained of had extra elements of oppression, persistence and unpleasantness and therefore crossed the line of harassment. There further question was whether the content of the statements could be distinguished from their mode of delivery.
The order sought against Dr Cave on the application sought to restrain him from "pursuing a course of conduct which amounts to harassment" and in particular, from making any "abusive or threatening communication to or about any officer employee or agent of" the first to fourth Claimants, "which shall include, for the avoidance of doubt, any repetitive emails, letters or telephone calls to or about such persons" or "[a]ny communication whatsoever to or about any officer, employee or agent of" the first to fourth Claimants.
Mrs Justice Elisabeth Laing DBE considered each part of the Defendant's conductShe found that there was no evidence of alarm or distress, or of anything like it, and did not consider that any person of reasonable firmness could possibly be alarmed or distressed, or be caused any similar emotion, by the receipt, of such communication at his work email address. Looking over the activities she found that the tone and content may be misguided, but they did not constitute harassment. They did not cross the Majrowski line. Viewing the course of conduct as a whole, she held that it might be annoying conduct, and it might well be irritating. But this was not conduct which was grave enough to be a crime.
For those reasons, this application failed.
The Claimants had not persuaded Mrs Justice Elisabeth Laing DBE that there was a serious question to be tried, nor that they were more likely than not to succeed. As such there was no need to consider the balance of convenience in accordance with American Cynamid Co v Ethicon Ltd  AC 396C.
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