Warner, Kenneth

English

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149 
 
The Statutory Tort of Harassment 
 
Kenneth Warner 
 
 
  
 The Court of Appeal has recently found in favour of a claimant 
against a company for the new tort of harassment. In Ferguson v British 
Gas Ltd ([2009] EWCA Civ 46; [2010] 1 WLR 785) Ms Ferguson had 
been a customer of British Gas, but had closed her account with them. 
Thereafter, however, over a period of months, she continued to receive 
bills from the defendants, requesting payments of amounts pertaining to 
her power usage subsequent to her closure of her account with them; those 
sums were clearly not owed. Other bills followed, accompanied by letters 
which threatened further action against her. She was informed that her gas 
supply would be disconnected, legal proceedings would be instituted 
against her and that she would be reported to credit agencies. Since she 
was a businesswoman, the last of these threats was of greatest concern to 
Ms Ferguson. From the beginning she had attempted to have the situation 
corrected, first by telephone and then by letter. Suffice to say, after 
150 
 
numerous telephone calls and letters occupying many hours of her time, 
causing her frustration at the lack of response since most of the letters 
simply went unreplied to, and anxiety at the prospect that her credit-
worthiness had already been impugned, she found it impossible to bring 
the matter to a sensible conclusion. Even when Ms Ferguson’s solicitor 
wrote to the defendants on her behalf, and she herself sent letters detailing 
all these events to the defendants’ chairman by recorded delivery,  no 
replies to these communications were received, and no steps by the 
defendants to put matters right were taken. In the light of these remarkable 
failures on the part of British Gas, Ms Ferguson finally commenced 
proceedings against the company for the tort of harassment, pursuant to 
Sections 1 and 3 of the Protection from Harassment Act 1997. She claimed 
damages in tort for £5,000 for distress and anxiety and a further £5,000 for 
the time and expenses she had incurred in this process of dealings with the 
defendants. 
  Under the provisions of the Act, conduct which amounts to 
harassment constitutes both a crime (under Section 2) and a tort (under 
Section 3).  
 Section 1(1) provides: 
 
151 
 
 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 the other. 
 
Section 1(2) provides: 
 
 For the purposes of this section, the person whose course of 
conduct is in question ought to know that it amounts to 
harassment of another if a reasonable person in possession of the 
same information would think the course of conduct amounted to 
harassment of the other. 
 
 In the County Court the defendant applied to have the claim struck 
out on the grounds that the conduct in question was not sufficiently grave. 
The claim was transferred to the Queen’s Bench Division where the 
application was refused. From that decision the defendants appealed to the 
Court of Appeal.  
  It was submitted by the defendants that, based on a proper 
interpretation of these provisions, the course of conduct, described above, 
could not be construed as harassment. Given that the Act creates, in 
relation to the conduct in question, both a crime and a tort, this indicates 
152 
 
that the conduct must be such as to justify a criminal conviction, as a 
minimal level, before liability in a private action in tort can properly be 
founded.  
 Conduct, the gravity of which falls below that level, however 
annoying or aggravating it may be, does not pass this threshold test, and is 
insufficient to constitute “harassment” under the Act at all. In this regard 
the defence relied upon Majrowski v Guys and St Thomas’s NHS Trust 
([2007] 1 AC 224) and Sunderland City Council v Conn ([2008] IRLR 
324). The point at issue in Majrowski was whether an employer could be 
held vicariously liable for the harassing conduct of an employee, with the 
House of Lords holding in the affirmative. On the question of the gravity 
of the offending conduct, the House, indeed, observed that, on a correct 
construction, in order to constitute “harassment” for the purposes of a civil 
suit, that conduct must be viewed a sufficiently serious one so as to ground 
a criminal prosecution, whether or not such a prosecution has been 
instituted in respect of it. The level of gravity, then, is the same. This view 
was endorsed in Sunderland, a case concerning harassment of a co-
employee in the workplace.  The Court of Appeal accepted this argument 
in its general terms, but found no great significance in it. In both 
Majrowski and Sunderland the Court had inclined to the broadest view as 
153 
 
to what sort of conduct could actually constitute “harassment”, whilst 
accepting, as it were, some implied licence for others, in this modern age, 
to subject us to their intrusions when we would rather they did not. In 
Majrowski, Baroness Hale said (at para. 66): 
 
A great deal is left to the wisdom of the courts to draw sensible 
lines between the ordinary banter and badinage of life and 
genuinely offensive and unacceptable behaviour.  
 
And similarly, for Lord Nichols (at para. 30): 
 
…courts will have in mind that irritations, annoyances, even a 
measure of upset, arise at times in everybody’s day-to-day 
dealings with other people. Courts are well able to recognise the 
boundary between conduct which is unattractive, even 
unreasonable, and conduct which is oppressive and unacceptable.  
 
 In Ferguson’s case, the Court of Appeal found that a view could 
properly be taken that, should the matter have come to prosecution, a jury 
reasonably could have concluded that the defendants’ conduct towards Ms 
154 
 
Ferguson went beyond that which ought to be tolerable, and could well be 
regarded as harassment.  
 It was further submitted that there was a distinction to be made 
where the conduct in question is, rather than that of a sentient being such 
as an individual trader, that of a corporation such as the defendants. In the 
latter case, it was said to be incumbent upon the plaintiff to show either 
that the conduct was directed by someone with such seniority or authority 
within the organisation that it can be regarded as the act of the company 
itself, or that the conduct was within the responsibility of a specific 
employee, for whose conduct the company would be vicariously liable.  
This is because the Act provides that the claimant must show either that 
the defendant knew or ought to have known that the conduct amounted to 
harassment (Section (1))b)). This argument was rejected. In the instant 
case it was not possible to say what was the actual state of knowledge of 
any person within the British Gas organisation, a matter known only to 
themselves; but in any event the Act provided no defence of “accidental” 
harassment, and the Court could see no reason in policy as to why a 
company should be exonerated from liability in circumstances where a 
sole trader would not be. In effect the constructive knowledge of the 
company must be taken to amount to the total knowledge available 
Comment [o1] : Is this correctly set out? 
155 
 
through its employees at the time of the averment of harassment. 
Moreover, the defendant’s sole authority for this proposition, Tesco 
Supermarkets Ltd v Nattrass ([1972] AC 153), was concerned with the 
construction of the Trade Descriptions Act 1968, the provisions of which 
were described by the Court as “quite, quite different”([2010] 1 WLR 785, 
at 793, para. 30). That Act contains a defence which was the central 
consideration in Nattrass and there is no equivalent defence in the 1997 
Act under consideration in the instant case. 
 It was not an appropriate mode of construction to extrapolate from 
the one statutory context to the other; rather, the 1997 Act must be 
interpreted on its own terms. 
  All that Ms Ferguson would need to show under s.(1)(b) is that the 
defendants ought to know that the conduct concerned amounts to 
harassment, and Section 1(2) imports, in effect, the test of the familiar 
“reasonable person”. She had, in her statement of claim, described the 
course of conduct of which she was complaining and set out what passed 
between herself and the defendants. This is sufficient for the Court to form 
a view as to what the hypothetical reasonable mind would make of it. A 
final contention of the defendants suggested an issue in terms of what 
“ought” to have been known within an organisation, where individual 
Comment [o2] : Is this correct? 
156 
 
persons are in possession of some information of the events in question, 
but no one person has complete knowledge of all the circumstances or, as 
the Court more bluntly put it, “the right hand not knowing what the left 
was doing” ([2010] 1 WLR 785, at 796, para .44). There was no basis for 
this in the language of the Act, nor did it commend itself to the Court as a 
matter of sensible construction. The “reasonable person” is to be invested 
with knowledge of the entire course of events referred to, as well as the 
complainant’s responses to those.      
 
Summary 
 
 The Protection from Harassment Act 1997 provides the possibility 
both of prosecution as an offence and a private action for damages in tort 
where the claimant suffers from the defendant’s harassing conduct. In both 
cases, what is necessary to be shown is that the offending conduct 
transgresses a level that would be tolerable, if vexatious, to the average 
person.  
 
 
Kenneth Warner 
157 
 
La Trobe University, Australia 
 
 
 
 
 


The statutory tort of harassment

http://ssudl.solent.ac.uk/1824/1/Warner.pdf

The statutory tort of harassment

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