Adam Solomon QC and Georgina Leadbetter represented the successful Respondents before the Court of Appeal (Lewison LJ) in Rushton v Tompkins & Anor  EWCA Civ 1995. CLICK HERE for the judgment.
Mr Rushton, a surveyor, had been conducting a campaign against the Royal Institution of Chartered Surveyors (“RICS”) for a number of years. This was primarily conducted by email and posts on social media, and through a website called Implacable Hostility. In the course of the campaign Mr Rushton accused the RICS, employees and former employees of the RICS of dishonesty, corruption, hypocrisy, conspiracy to cover up wrong-doing and perversion of the course of justice.
RICS and Mr Tompkins (CEO of the RICS), represented by Adam Solomon QC, sought an injunction under the Protection from Harassment Act 1997 (“the Act”) to stop Mr Rushton pursuing this campaign against its employees. May J granted this injunction. Mr Rushton appealed, and a permission hearing was held.
The focus of the submissions of Mr Hendy QC for Mr Rushton, was the principle of free speech. However, this was summarised by Lewison LJ, “that as long as he did not incite violence he was entitled to say what he wants, as often as he wants, and as offensively as he wants.” Lewison LJ confirmed that this is not the law, observing “Article 10 expressly recognises that freedom of speech can be curtailed in so far as is necessary in a democratic society in order to protect the rights of others. Parliament has decided that one such right is the right to be free of harassment.”
The judgment of Lewison LJ gives helpful guidance on a number of points of principle and practice which will be of assistance to those preparing or resisting applications for relief under the Act:
The court confirmed that claims under the Protection from Harassment Act are to be brought as Part 8 claims. In this case, as no objection to the Part 8 procedure was made either in the acknowledgement of service or by way of application, the judge was entitled to proceed on the evidence before her without cross-examination (as, of course, is usual in a Part 8 claim).
Alarm and distress
The judgment highlights a lack of clarity in the law concerning the “alarm and distress” component of the test for harassment. In Hayes v Willoughby  UKSC 17 Lord Sumption stated: “Harassment is a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person, which is calculated to and does cause that person alarm fear or distress, see Thomas and Newsgroup Newspapers Limited.” However, as observed by Lewison LJ, “In fact the reference to the paragraph in Thomas does not bear out the assertion that the conduct does in fact cause alarm and the Act does not have that statutory requirement.” Accordingly, Lewison LJ considered that it is “still an open question whether it needs to be shown by evidence that distress has been caused”. As this will no doubt need to be clarified at appellate level in future, for the moment it remains safest for Claimants to provide evidence that the conduct in question has in fact caused alarm and distress.
The judgment provides helpful guidance to those wondering how best to distil a lengthy campaign of harassment into evidence to put before the court, capturing the nature, volume and (at least for the moment) impact of the conduct in a proportionate manner. In this case the RICS relied upon the posts and emails sent by Mr Rushton themselves, extracts of which were set out in a Schedule of Particulars of Harassment, and a witness statement of Mr Tompkins, CEO of the RICS. Mr Tompkins’ statement set out the course of the conduct complained of and described the alarm and distress suffered by members of the staff of RICS. May J accepted this evidence, and given the volume of correspondence assessed a sample to consider whether it rose to the level of harassment. Lewison LJ confirmed that this approach was not open to challenge.
Scope of the order
The court also clarified that May J did not err in granting the protection of former, as well as current, employees of RICS. Lewison LJ noted that it is well-established that a company can bring proceedings under the Act on behalf of its employees, and confirmed that the only relevant requirement for the making of such an order is that the parties have the same interest. On the facts of this case, where Mr Rushton’s campaign had extended to former employees, RICS was entitled to seek to protect those former employees.
Adam Solomon QC and Georgina Leadbetter were instructed by Colin Gibson of Fieldfisher.