OUTER HOUSE, COURT OF SESSION [2010] CSOH 17
A994/08	OPINION OF LORD UIST in the cause FREDERICK MARINELLO Pursuer; against THE CITY OF EDINBURGH COUNCIL Defenders: ____________

Pursuer: Allardice; Thompsons

Defenders: Duncan; Gill Lindsay

2 March 2010

Introduction

[1] The pursuer, who was born on 5 April 1958, is employed by the defenders as a Community Service Assistant. In this action he seeks damages from them for their alleged breach of section 8 of the Protection from Harassment Act 1997 (the 1997 Act). He avers that the harassment to which he was subject consisted of conduct on the part of two of his superiors, James Hewitt and Frank Kane.

[2] The case called before me on the procedure roll on the defenders' first two pleas‑in‑law, being respectively a plea to the relevancy and lack of specification of the pursuer's averments and a plea of time bar.

Protection from Harassment Act 1997

[3] The Protection from Harassment Act 1997 (the 1997 Act) is an Act to make provision for protecting persons from harassment and similar conduct. Sections 1 to 7 extend to England and Wales only and sections 8 to 11 extend to Scotland only. In order to understand the English decisions on the Act it is necessary to know what sections 1, 2 and 3, so far as relevant, provide. These sections provide as follows:

"1 - Prohibition of harassment.

(1) 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.

(1A) A person must not pursue a course of conduct -

(a) which involves harassment of two or more persons, and

(b) which he knows or ought to know involves harassment of those persons, and

(c) by which he intends to persuade any person (whether or not one of those mentioned above) -

(i) not to do something that he is entitled or required to do, or

(ii) to do something that he is not under any obligation to do

2 - Offence of harassment

(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.

3 - Civil remedy
(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment."

[4] Section 8(1) and (2) provides:

"8 Harassment

(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and -

(a) is intended to amount to harassment of that person; or

(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

(2) An actual or apprehended breach of subsection (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question; and any such claim shall be known as an action of harassment.

(3) For the purposes of this section -

'conduct' includes speech;

'harassment' of a person includes causing the person alarm or distress; and

a course of conduct must involve conduct on at least two occasions.

(4) In an action of harassment the court may, without prejudice to any other remedies which it may grant, -

(a) award damages;

(b) grant

(i) interdict or interim interdict.

(6) The damages which may be awarded in an action of harassment include damages for any anxiety caused by the harassment and any financial loss resulting from it."

[5] There is no provision in the Act making harassment a statutory offence in Scotland.

[6] Section 10 provides as follows:

"10 Limitation

(1) After section 18A of the Prescription and Limitation (Scotland) Act 1973 there is inserted the following section -

"18B Actions of harassment
(1) This section applies to actions of harassment (within the meaning of section 8 of the Protection from Harassment Act 1997) which include a claim for damages.

(2) Subject to subsection (3) below and to section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after -

(a) the date on which the alleged harassment ceased; or

(b) the date (if later than the date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to have become aware that the defender was a person responsible for the alleged harassment or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who is alleged to have suffered the harassment was under legal disability by reason of nonage or unsoundness of mind.

(2) In subsection (1) of section 19A of that Act (power of court to override time-limits), for 'section 17 or section 18 and section 18A' there is substituted 'section 17, 18, 18A or 18B'."

The pleadings

[7] The averments alleging harassment are contained in condescendence 4, which it is necessary to set out at length:

"(i) The pursuer works as part of the North West Criminal Justice Team which is based at Muirhouse Crescent Social Work Centre, 34 Muirhouse Crescent, Edinburgh EH4 4QL. His job involves the supervision of groups of offenders who have been sentenced to community service. Until 2004 the pursuer would supervise his groups with the assistance of a further Community Service Assistant. He would be responsible for the management of projects to be carried out by his group and was therefore able to plan the work in advance. He was able to get to know the members of his group and how they were likely to interact with each other. Such advance knowledge assisted in the management of the group, some of whom would include, from time to time, offenders with histories of violence. The pursuer was extremely experienced at this type of work and enjoyed it. In 2004 the pursuer's manager, Mr James Hewitt, had a deputy appointed to him, Mr Frank Kane. They were respectively the Community Service Officer and the Depute Community Service Officer. During 2004 responsibility for the management of his group's projects was gradually taken away from the pursuer. Under the new management regime he was not provided with adequate notice of the membership of his group and was no longer involved in planning the projects which they would work upon. A system arose whereby the said Mr Hewitt would post a list of the group members through the pursuer's letterbox on a Saturday evening along with a set of minibus keys. The pursuer was then required to attend at the said North West Criminal Justice Team's Muirhouse office car park and wait for his group members to arrive there. Under the new regime the pursuer was working on his own. Often, more than the five men on his list would turn up and he would have to send the two or three extra men away. Offenders who have been sentenced to community service are required to complete that service within one year of sentence. There are waiting lists for offenders to be allocated to community service and pressure within the justice system to complete community service in time. The pursuer found it difficult and stressful to turn extra men away but as 2004 progressed he increasingly found that more men were turning up on Sunday morning than were on his list. The defenders' averments in answer are denied except insofar as coinciding herewith. The pursuer's clients routinely included offenders who had been sentenced to the maximum number of community service hours for serious offences such as assault. It only took one or two such clients in a group to make it difficult to manage. It was extremely important that the pursuer's authority with his groups be maintained in their eyes and that nothing be done on the part of his line managers to diminish that responsibility as hereinafter condescended upon.

(ii) In summer 2005 the pursuer was supervising a group who were delivering items to the Heart Foundation shop in Wester Hailes. He received a telephone call from the said Frank Kane who instructed him to return to the office. The pursuer had to drive back to the office with five offenders in his minibus and meet with Frank Kane there. Said Frank Kane then instructed the pursuer to drive to an address in Drylaw which belonged to an elderly disabled woman. Said Frank Kane told the pursuer that the elderly lady had accused the pursuer of taking money from her for a washing machine which his group had installed in her house. To accept money for tasks carried out by his group would be a serious breach of the rules under which community service is carried out. The pursuer was instructed by the said Frank Kane to follow him into the elderly lady's house and without preamble the said Kane asked the old lady if the pursuer was the man to whom she had given money for the washing machine. Said elderly lady confirmed that she had not given any money to the pursuer. The said James Hewitt then arrived at the house and again asked the elderly lady if the pursuer was the man to whom she had made payment for a washing machine. He asked her three times and on each occasion she confirmed that it was not the pursuer. The pursuer then left said house with Kane and Hewitt and in full view of the offenders who were still sitting in the minibus he was berated about the incident by both said Kane and Hewitt in front of said offenders. Said incident had the effect of demeaning the pursuer in the eyes of the offenders he was required to supervise and caused him considerable stress and anxiety in regard to his ability to continue to supervise that group. The defenders' averments in answer are denied except insofar as coinciding herewith.

(iii) On or about 18 September 2005 the pursuer had been experiencing difficulty with a group of offenders to whom he had been allocated that day. There was a football match taking place that afternoon between Hibernian Football Club and Celtic Football Club and a number of the offenders had made it clear during the morning by their remarks and behaviour that they wished to watch the match on television. Said offenders became increasingly difficult to manage during the course of the day and at around 1.30 pm the pursuer phoned said Frank Kane to advise him of his concerns. Said Kane instructed the pursuer to issue a formal warning to the offenders that their community service orders could be referred to the court for review. The pursuer knew that to give such a warning to the offenders in his supervision was likely to inflame an already volatile situation. One of the offenders started to complain about the state of the gardening equipment which the group were using. The pursuer contacted James Hewitt again who simply asked him where he was going next and advised him that if the problem with the group continued then the pursuer was to telephone him. The pursuer was dismayed at this advice because it left him in a potentially vulnerable situation. He experienced extreme stress and anxiety as a result of the behaviour on the part of the men he was supervising and the lack of support from Mr Hewitt. At about 3.50 pm that day James Hewitt telephoned the pursuer again and asked to speak to one of the offenders. Said Hewitt then asked the offender, Mr Warren Anderson, a series of questions about the manner in which the pursuer was supervising the project. Hewitt telephoned the said Anderson on three occasions. Anderson cut two of the calls short and on the third occasion the pursuer took the call. Said telephone calls and conversation further undermined the pursuer's ability to supervise his group.

(iv) On another occasion in 2005 at Scotland Yard , Edinburgh said Hewitt arrived and complained about the way in which a job which was being done there by the pursuer's group was being carried out. Said Hewitt shouted and swore at the pursuer in front of the offenders in his group. He called the pursuer "a fucking wanker" in front of said offenders. Once said Hewitt had left the site the offenders stopped working and played football. The pursuer was unable to stop them from doing so or persuade them to go back to work. The defenders' averments in answer are denied except insofar as coinciding herewith.

(v) The pursuer was regularly instructed by the said Hewitt to clean his van. It was normal practice for staff to get clients to clean the vans, though on occasion other staff would clean their own vans. The pursuer was instructed to clean the van even when it was not dirty. The said Hewitt did not regularly instruct other staff to clean their vans. After cleaning the said van the said Hewitt (sic) would berate the pursuer for how dirty the van was. On one occasion in Lillybank Gardens the said Hewitt approached the pursuer, who was sitting in the said van. The pursuer's clients were also in the said van. The said Hewitt shouted at the pursuer and stated 'the van's a fucking disgrace'.

(vi) The pursuer was instructed to take his team of clients and paint the Merchiston Community Boys Club. As the said task was completed the said Hewitt repeatedly attended at the said location and berated the pursuer for the quality of work being performed. He shouted at him, inter alia, "You're useless", "You're not cutting the mustard", "You're a fucking idiot". The said shouts were overheard by the pursuer's clients.

(vii) Through 2005 on an almost daily basis the pursuer was subject to verbal abuse and criticism by the said Hewitt and Kane. It became a matter of routine for the pursuer to be called into the office by said Hewitt and he and said Kane would pick fault in the way in which the pursuer was supervising his group. Said behaviour amounted to bullying and harassment.

(viii) In late 2004 the said Hewitt instructed the pursuer to take a group of clients to work in a building at 163 Leith Walk, Edinburgh. Said building was in a dangerous condition. There was water ingress and fire damage. In course of work on said building two of the pursuer's clients slipped on a wet floor while carrying a cabinet and suffered injury. One of the injured clients, Warren Anderson, made a successful claim against the defenders for his injury. The pursuer and his group should not have been instructed to work in the said building. The pursuer's clients were understandably unhappy to have to do so and made their feelings known to the pursuer who was again put under unnecessary pressure, causing stress and anxiety by reason of these conditions.

(ix) In October 2005 the pursuer lodged a grievance about his treatment at the hands of the said Kane and Hewitt with the defenders. The said grievance was investigated and partly upheld. Despite requests by the pursuer and his union, he has not been provided with a copy of the defenders' findings into said grievance.

(x) On or about 18 March 2007 the pursuer was walking along Crewe Road North, Edinburgh. As he did so he became aware of a transit white mini-bus heading towards him. The said mini-bus veered towards him. The pursuer then noticed that the said Hewitt was driving the said van (sic). He sounded the horn. The said Hewitt gesticulated to him with a clenched fist. The defenders' averments in answer are denied except insofar as coinciding herewith."

[8] In condescendence 5 the pursuer avers that he started to experience low mood, nightmares and sleeplessness and developed a depressive disorder with features of anxiety (DSM IV 296.22). In 2005 he submitted a grievance against Hewitt through his union. He was placed on gardening leave, consulted his GP and was referred to hospital for psychiatric treatment. He was referred by the defenders to their occupational health advisers. He was anxious and depressed and suffering from affective disorder. He continued and continues to suffer from depression. He remains anxious and depressed. He continues to suffer sleeplessness, nightmares and listlessness. He has been unable to return to work.

[9] In condescendence 6 it is averred that the pursuer's loss, injury and damage was caused by the defenders' employees' breach of statutory duty under section 8 of the 1997 Act. It is averred that the course of conduct pursued by the said employees amounted to the harassment of the pursuer.

Submission for the defenders

[10] The broad proposition advanced on behalf of the defenders was that the pursuer's case was periled entirely on asserted breaches of the 1997 Act. In their note of argument the defenders submitted that the averments in support of the pursuer's case were irrelevant, lacking in specification and insufficient to amount to a course of harassment under the 1997 Act. It was said that nothing averred by the pursuer in article 4(i), (ii), (iii), (ix) or (x) could, even if proved, amount to harassment under the 1997 Act and that the averments in article 4(iv)-(vii) disclosed nothing more than vulgar abuse, which fell well short of conduct of such gravity as to demonstrate a breach of the 1997 Act. The only specification of vulgar abuse was that said to have been occasioned by Mr Hewitt and the suggestion that Mr Kane was also in breach of the 1997 Act had no basis whatsoever on record. That position changed at the procedure roll hearing when it was accepted that the pursuer's case was fact dependent and there was probably just enough in the averments in article 4(i)-(ix) to allow them to go to inquiry. The submission then focused on the averments in article 4(x) about the incident on 18 March 2007. The proposition was that that incident was entirely anodyne and could not be said to be part of the course of conduct alleged to amount to harassment. The case then became time-barred as the last specified act of harassment was on 24 September 2005 and the action was not raised until 30 September 2008. There was no answer on record to the defenders' plea of limitation. The pursuer had not been at his workplace since 24 September 2005 and the incident averred in article 4(x) occurred about 18 months later outwith the workplace and could not be said on any sensible view to be part of a course of conduct.

[11] The following six propositions on the construction of the 1997 Act were advanced on behalf of the defenders:

(1) A right of action arises where there is a course of conduct amounting to harassment. For the action to proceed a pursuer must prove either that the conduct was intended to be harassment or that a reasonable person would consider it to amount to harassment. It follows that for a case to survive debate, absent averment that there was actual intention, there must be averments capable of supporting the conclusion that, looked at objectively, the conduct amounted to harassment.

(2) Section 8 of the 1997 Act strikes a balance. It is the balance between, on the one hand, the right of an individual to act and, on the other hand, the right of an individual not to be affected by that act. It is because of this balance that there are limits upon the extent to which an individual affected by an act can claim an infringement of his section 8 right to be free from harassment. The courts should be astute to observe Parliament's judgment as to what those limits are. The courts should seek to apply those limits at an early stage. There is no reason why, though a case based on the Act is fact-dependent, there must be inquiry into those facts.

(3) The first limit is that each of the acts in question must be of sufficient gravity to amount to harassment. The Act does not provide a definition of the term 'harassment'. The threshold in any individual case will depend upon the facts of that case and also the context in which the acts occurred. The courts require to keep in mind that badinage and even vituperative language may be unwelcome, but they are part of everyday life. Given that, it follows that it will only be in 'extraordinary' or 'fairly severe' circumstances that allegations based on unpleasant acts within the workplace can sensibly be considered to be a breach of section 8.

(4) The approach suggested in the preceding paragraph is consistent with the tension in section 8: the competing rights. But it is also consistent with a clue within the Act to the seriousness of the actings Parliament expects the courts to see before deciding that the balance tips in favour of the person claiming to have been adversely affected by the acts of another. The clue is the fact that in England a course of conduct amounting to harassment under the Act is a criminal offence. The courts in England have repeatedly observed that the conduct in question must be serious and that the evidence supporting it requires to be cogent.

(5) The second limit on the remedy under section 8 is that there must be a course of conduct. Each of the acts said to form the course of conduct must satisfy the gravity requirement.

(6) A claimant will require to demonstrate a sufficiently close link in time, character and circumstances in order to demonstrate that each act is an element in a single course of conduct. Weakness in one aspect of those may require added strength in the others. But what is required is continuity and where there is, as here, a gap in time and differences in character and circumstances it may be that the necessary continuity cannot be shown to exist.

[12] Reference was then made to certain reported decisions in support of the above propositions. The case of Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 dealt with the question whether an employer in England was vicariously liable for harassment committed by an employee in the course of his employment. It was held that he was. In the course of their speeches their Lordships made certain observations about the 1997 Act. Lord Nicholls of Birkenhead, delivering the leading speech, said at p 231D-H, paras 18 and 19 as follows:

"18. I turn to the material provisions of the 1997 Act. The purpose of the statute is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth. ...

19. This statutory prohibition applies as much between an employer and an employee as it does between any other two persons. Further, it is now tolerably clear that, although the victim must be an individual, the perpetrator may be a corporate body."

At p 234C, para 30, speaking of employers' concerns about the prospect of abuse of the right of action under the 1997 Act in actions against them, his Lordship said:

"The possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the 'close connection' test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, 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. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."

At p 244, para 63 Lord Hope of Craighead said:

"Although the provisions of the 1997 Act which apply to Scotland differ in various respects from those which apply to England and Wales ... it was not suggested that the intention of Parliament was that there was to be any difference in substance as between the two jurisdictions as to the scope of the civil remedy for harassment. On the contrary, the Home Secretary ... said when introducing the Bill at second reading that the aims of the Bill as it applied to England and Wales were identical to those for Scotland."

At p 245B, para 66, Baroness Hale of Richmond said:

"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 ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour."

[13] In Conn v City of Sunderland [2007] EWCA Civ 1492 the claimant, a paver employed by the defendants since 1962, brought an action of harassment against the defendants based on the allegation that his foreman in five incidents between 25 July 2000 and 17 November 2000 had abused, threatened and intimidated him in such a way as to amount to harassment. The recorder found only two out of the five incidents proved but that these two incidents amounted to harassment. In their appeal against that decision the defendants submitted that neither of the two incidents was of sufficient gravity to constitute harassment within the meaning of the 1997 Act. The Court of Appeal held that the recorder had not at any stage in his judgment specifically referred to the guidance given by Lord Nicholls in Majrowski on the threshold test or to the question whether or not the conduct could amount to criminal harassment. Gage LJ, giving the leading judgement, said at para 12:

"It seems to me that, what in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognising what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law."

Buxton LJ stated at para 16 that "what occurred is a very long way away from anything that, in a sensible criminal regime, would lead to a prosecution, much less to a conviction.

[14] In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 the claimant was a former customer of British Gas who between 21 August 2006 and late January 2007 was sent by them bill after bill and threatening letter after threatening letter and nothing that she could do would stop it. She claimed that the course of conduct on the part of British Gas amounted to harassment under the 1997 Act and sought damages for distress and anxiety, as well as for financial loss due to time lost and expenses in dealing with British Gas. British Gas asked the court to strike out the claim. The judge who heard the application refused to strike out the claim and refused permission to appeal. Later another judge granted permission to appeal, saying that "however lamentable and frustrating the conduct of the defendants, it is arguable that, taken at its highest, it does not pass the criminal threshold." In dealing with the gravity test Jacobs LJ said at paras 11 and 12:

"11. Mr Porter (counsel for the defendants) accepted that what British Gas did to Ms Ferguson amounted to a 'course of conduct'. But, he submitted, it was not enough even arguably to amount to 'harassment'. No reasonable court could so conclude and hence the claim was without reasonable foundation.

12 He pointed out that harassment is both a civil wrong (s 3(1)) and a crime (s 2(1). That showed, he said, that the impugned conduct had to be rather serious. For otherwise merely annoying or aggravating matters of everyday life would be criminalised, which cannot have been the intention of Parliament."

His Lordship then referred to the cases of Majrowski and Conn, as well as Allen v Southwark [2008] EWCA Civ 1478, and continued at para 17 as follows:

"17. I accept that a course of conduct must be grave before the offence or tort of harassment is proved. And that, as Mr Porter accepted after some discussion, the only real difference between the crime of s 2 and the tort of s 3 is the standard of proof. To prove the civil wrong of harassment it is necessary to prove the case on a balance of probabilities; to prove the crime the standard is the usual one of beyond a reasonable doubt.

18. In so accepting I would just add this word of caution: the fact of parallel criminal and civil liability is not generally, outside the particular context of harassment, of significance in considering criminal liability. There are a number of other civil wrongs which are also crimes. Perhaps most common would be breaches of the Trade descriptions Act 1968 as amended. In the field of intellectual property both trade mark and copyright infringement, and the common law tort of passing off (which generally involves deception), may all amount to crimes. It has never been suggested generally that the scope of a civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognised, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene.

19. Having accepted Mr Porter's submission about the legal test requiring gravity, I apply it here. I am quite unable to conclude that the impugned conduct is incapable of satisfying the test. On the contrary, I think, at the very least, that it is strongly arguable that it does. I ask myself whether a jury or bench of magistrates could reasonably conclude that the persistent and continued conduct here pleaded was on the wrong side of the line, as amounting to 'oppressive and unacceptable conduct'. I am bound to say that I think they could. And, in contrast to the Sunderland case, for instance, I would think it entirely proper for a prosecutor such as a Trading Standards Officer, to bring criminal proceedings in respect of a case where there has been such a period of persistent conduct and such threats as are pleaded here."

[15] In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 the claimant was an electrician who claimed to have been harassed at work by her supervisor. The recorder held that the proven acts did not amount to harassment and dismissed the claim. He took the view that the conduct complained of plainly did not constitute harassment "very largely because I cannot see that any sensible prosecuting authority would pursue these allegations criminally; or, even if a prosecution were somehow brought, say perhaps by the claimant herself in a private prosecution, I cannot see that any prosecution would suffer any fate other than to be brought to an early end as an abuse of process". The Court of Appeal reversed his decision. Maurice Kay LJ, with whom Rimer LJ and Waller LJ agreed, stated at paras 11, 12 and 15:

"11. Leaving aside the fact that Jacob LJ in Ferguson variously described the necessary level of conduct as 'grave' and 'fairly severe', it seems to me that, since Majrowski, courts have been enjoined to consider whether the conduct complained of is 'oppressive and unacceptable' as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which 'would sustain criminal liability'.

12. Although the recorder referred to paragraph 30 of the speech of Lord Nicholls in Majrowski, he did not set it out, preferring to set out the passage from the judgment of Buxton LJ in Conn to which I have referred. What he did was to focus primarily on his assessment of whether a prosecuting authority would have pursued a criminal case and, if there had been a prosecution, whether it would have had any prospect of success. He plainly thought that it would have had no such prospect and that it would have been stayed as an abuse of process. What the recorder did not do was to evaluate the evidence against the primary requirement that, in order to establish liability, the conduct must be 'oppressive and unacceptable'. Those words are conspicuously absent from his judgment. In my view, that displays an erroneous approach.

15. All this leads to the question: if the recorder had considered the evidence by reference to the test of 'oppressive and unacceptable', would he have inevitably come to the same conclusion, namely, that the appellant had failed to prove harassment on the balance of probabilities? In my judgment he would not. In a case where the appellant's evidence has been accepted by the trial judge and there is no contrary evidence, this court is at no disadvantage when it comes to the evaluation of that evidence. It seems to me that the recorder undervalued the evidence. The account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of 'unattractive' and 'unreasonable' conduct (in Lord Nicholls' words) or 'the ordinary banter and badinage of life' (in Baroness Hale's words). It self-evidently crosses the line into conduct which is 'oppressive and unreasonable'. It may be that, if asked, a prosecutor would be reluctant to prosecute, but that is not the consideration, which is whether the conduct is 'of an order which would sustain criminal liability'. I consider that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability. I do not accept that, in a criminal court, the proceedings would properly be stayed as an abuse of process."

At para 17 he added the following observation:

"Since Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, it has become more difficult for an employee to succeed in a negligence action based on stress at work. It seems that this may be causing more employees to seek redress by reference to harassment and the statutory tort, although it is doubtful whether the legislature had the workplace in mind when passing an Act that was principally directed at 'stalking' and similar cases. Nevertheless, there is nothing in the language of the Act which excludes workplace harassment. It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be 'oppressive and unacceptable', but I have done so in circumstances where I have also described it as extraordinary. I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal."

[16] In Robertson v Scottish Ministers [2007] CSOH 186 the pursuer was a female prison officer who sought damages from her employers for alleged bullying and harassment at work between early 2000 and late 2001. She sued her employers directly at common law and as being vicariously liable for the acts of her fellow employees and also proceeded by way of an action of harassment under section 8 of the 1997 Act. Lord Emslie held that no relevant common law case had been pleaded against the pursuer's employers, that the action of harassment could not be ruled out as a matter of relevancy and that a proof before answer should be allowed in respect of it. At para 10 he stated:

"For the defenders it was stated, under reference to certain observations by Lord Nicholls of Birkenhead in Majrowski that only criminal conduct could constitute harassment for present purposes. At first sight a passage in his Lordship's speech at paragraph 30 might possibly convey such an impression, but in my opinion any such impression would be unjustified. (His Lordship then set out the provisions of sections 1(1) and 2(1) of the Act.) Criminality is thus explicitly a consequence, rather than a prerequisite, of civil harassment under section 1(1). For Scottish purposes, in any event, section 8 contains no equivalent provision, Parliament (judging by Hansard) having apparently taken the view that the criminal law of Scotland was already adequate to cover such situations as might arise. Since 1997, moreover, a number of reported cases, including Majrowski, have been allowed to go to inquiry without the conduct concerned having been criminal in nature. As it respectfully seems to me, the observations of Lord Nicholls on which reliance was placed were truly directed to a different point altogether, namely, the obvious need for caution in branding everyday conduct 'harassment' where criminal consequences would (in England and Wales at least) automatically follow."

[17] It was submitted that these decisions supported propositions 2, 3 and 4 for the defenders. In Ferguson the Court of Appeal was moving away from the test in Conn. Whether a conviction would ensue was not the test of civil liability, but the conduct had nevertheless to be fairly severe or unacceptable and oppressive in nature.

[18] In relation to the requirement for a course of conduct reference was made to the criminal case of McGlennan v McKinnon 1998 SLT 494 which dealt with the 1997 Act. At p 497G-K Lord Justice General Rodger said:

"I would add that I am satisfied that the need for conduct on at least two occasions is not a requirement which can be lightly overlooked. That requirement helps to delimit the scope of the new right which Parliament has given to victims and the corresponding limit which has been put on others' freedom to act. The provisions of the 1997 Act can be seen as recognising an actionable right to be free from unwelcome pursuit, which in some legal systems forms part of a wider right of privacy. Hitherto under our law a young man who pestered a young lady by serenading her or a young lady who annoyed the object of her affection with unwanted protestations of love were (sic) more likely to be of interest to playwrights or authors of romantic fiction than to the courts or the prosecution authorities. If that has now changed, the courts should pay careful attention to the limits within which Parliament has ventured into these areas of behaviour. Moreover, the fact that, even in relation to the new English offence of putting people in fear of violence, Parliament enacted certain specific defences relating, for instance, to the prevention or detection of crime, shows that Parliament was conscious of the need to strike a balance with the wider public interest. The same can be seen in s 12, which applies to the whole of Great Britain, under which the Secretary of State can certify that things were done on behalf of the Crown and related to national security, the economic wellbeing of the United Kingdom or the prevention or detection of crime. Where such a certificate is granted, the Act does not apply to any conduct which it covers. When parliament has been thus engaged in weighing various aspects of the public interest and framing the legislation accordingly, the courts must be scrupulous to reflect its assessment of the public interest and in particular its decision that the legislation is to apply only where there is conduct on at least two occasions."

[19] Dodds v HM Advocate 2003 JC 8 was a criminal appeal dealing with the application of the doctrine of mutual corroboration as set out in Moorov v HM Advocate 1930 JC 89, which requires proof of a course of conduct. At paras 8 and 9 the Lord Justice Clerk (Gill) stated:

"8. When one looks at the circumstances and manner of commission of the offences that Lord Osborne has described, it is plain that the only material similarities between all or any two of them were that each involved the crime of rape and that each took place in the same area of Edinburgh. That was plainly insufficient.

9. Moreover, to the extent that there were the other similarities to which Lord Osborne refers, there was in my view an insufficient nexus of time. The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law. If the circumstances of the commission of the two crimes are of particularly unusual similarity, it may that corroboration can be found to exist even if the charges are separated by a long period of time. Lord Sands specifically canvassed such a case in Moorov (at p 88) in his well-known George Bernard Shaw example."

[20] In the much earlier case of Ogg v HM Advocate 1938 JC 152 the Lord Justice Clerk (Aitchison) stated at p 158:

"In deciding such a question the relation of the offences in time is a most material consideration. If the intervals of time between offences are substantial, an inference of their inter-relation becomes difficult and, as a matter of evidence, may be impossible to draw."

[21] Sai Lau v Director of Public Prosecutions (22 February 1999, unreported) was a criminal appeal against a conviction for harassment under the 1997 Act. At para 15 Schiemann J said:

"I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made. One can conceive of circumstances where incidents as far apart as a year could constitute a course of conduct and harassment. In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the Day of Atonement, and being repeated each year as the Day of Atonement came round. Another example might be a threat to do something once a year on a person's birthday. Nonetheless the broad proposition must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct."

[22] It was submitted that, in light of these decisions, the last incident averred in condescendence 4(x) could not be included with the previous incidents to form a course of conduct. The previous incidents involved routine verbal abuse on an almost daily basis. The last incident could be distinguished from them because of the "pretty huge time gap" and the completely different circumstances. There pursuer was not at work and no words were spoken. There was a lack of continuity between the prior incidents and this incident. Only Hewitt was involved in this incident, which meant that there was no conduct from Kane after 24 September 2005, making the case against Kane on any view time-barred. It was not averred that the minibus was deliberately driven at the pursuer. When it veered towards him he did not know the identity of the driver. All that the incident consisted of was the veering of the minibus and a gesticulation with a clenched fist.

[23] The submission for the defenders was summarised in the following points:

(1) It was accepted that on the basis of Jamieson v Jamieson 1952 SC (HL) 54 it must be demonstrated that there was no prospect of the pursuer succeeding on his averments, but, on the application of the case law, that was the result which inevitably followed.

(2) As Kane was not mentioned in the 2007 incident, there was no question of there being a case based on his acts.

(3) So far as Hewitt was concerned, two points arose:

(i) the 2007 incident could not be included in his course of conduct in view of the three factors required for it to be included. One could not conclude that there was continuity here due to the time gap, the fact that the relationship giving rise to the harassment was effectively at an end in 2007, the pursuer had not been in the workplace for 18 months and the daily abuse had stopped.

(ii) The conduct itself in the 2007 incident could not amount to harassment because

(a) it was not said that Hewitt did anything with the minibus;

(b) the pursuer did not even know that Hewitt was driving the minibus when it veered towards him;

(c) the clenched fist gesture could not be described as extraordinary, severe or criminal; and

(d) there was not the added quality of the 2005 acts, which consisted in conduct from a superior in the workplace on a daily basis.

(4) It followed that the averments about the 2007 incident should be deleted and the action consequently became time-barred under section 18B of the Prescription and Limitation (Scotland) Act 1973.

Submission for the pursuer

[24] The submission for the pursuer was that the pleadings as they stood warranted the granting of a proof before answer, leaving all pleas standing. There was agreement with much of the analysis in the submission for the defenders, in particular that Lord Emslie was correct in what he said in the quoted passage from Robertson v Scottish Ministers. It was the course of conduct, not the individual act, which had to demonstrate criminal liability because the purpose of the Act was to make certain types of behaviour in England, which had not been criminal hitherto, criminal. Previously people could not be prosecuted for stalking in England. Following someone home on one occasion could not amount to harassment. The overall course of conduct had to be something capable of sustaining criminal liability. An individual act had to be of some gravity, but that depended on the circumstances of each case. The case of Ferguson consisted of computer-generated letters and there could not therefore have been a criminal act. It was necessary to have regard to all that was said in the pleadings. The pursuer had been experienced at and comfortable in his job. He was put in a difficult situation while working with serious offenders. Each of the incidents in condescendence 4 was of a different nature. The averments in condescendence 4(ix) were not being advanced as a course of harassment. In relation to the 2007 incident, Kane was still the pursuer's manager and the pursuer had previously raised a grievance against him at work. The veering of the minibus towards the pursuer could amount to a criminal act: fear came in when the pursuer realised who the driver was. The conduct in question did not have to be intended to amount to harassment. The test to be applied was an objective one involving a consideration of all the circumstances, including the suffering which the pursuer had undergone, as averred in condescendence 5. An inference could be drawn that the minibus mentioned in condescendence 4(x) was a works minibus being used on a Sunday. The pursuer had averred a course of conduct which had continued up to 18 March 2007.

[25] The test for a course of conduct in harassment must be similar to the test for a course of conduct in a Moorov type of case and the gravity of the conduct must be considered in its context. There was no difficulty with such an approach. The effect of the last incident in 2007 had to be considered. It came in the context of a grievance having been lodged by the pursuer and his having been off work with a psychiatric illness. The inquiry at the proof had to be into the whole circumstances of the case: Allen v London Borough of Southwark [2008] EWCA Civ 1478 at para 24 and Hipgrave v Jones [2004] EWHC 2901, paras 64-67 and 74.

[26] The consistent aspect of the incidents averred in condescendence 4 was the relationship between the pursuer and the perpetrators. Certain acts were similar in nature in that their purpose was to undermine the pursuer, but others were straightforward bullying. The 2007 incident consisted of intimidating behaviour and was one of the most serious incidents.

Discussion and conclusion

[27] I consider first the nature and quality of the conduct required to form an incident in a course of conduct amounting to harassment. The English courts at one stage appear to have taken the view that the conduct in question had to be criminal in nature before it could amount to harassment. In my view that was not a correct approach. I agree with Lord Emslie's observation in Robertson v Scottish Ministers that criminality is a consequence, rather than a prerequisite, of civil harassment under section 1(1). In other words, in England it is the fact that the conduct amounts to harassment that makes it criminal, not the fact that it is criminal which makes it amount to harassment. As I have already pointed out, the Act does not make harassment a statutory offence in Scotland, although no doubt conduct which forms an incident in a course of conduct amounting to harassment may amount to either the offence of breach of the peace or the offence of threats. At the same time I accept that the conduct in question must be fairly severe (Ferguson at para 17) or oppressive and unacceptable (Veakins at paras 11 and 12).

[28] I do not accept the submission for the defenders that the 2007 incident averred in condescendence 4(x) lacks the necessary quality to form part of a course of conduct amounting to harassment. In my view it can properly be said to be fairly severe or oppressive and unacceptable. It was conduct which was clearly calculated, or at least liable, to cause alarm and distress as it could have led to physical injury to the pursuer. The gesticulation with a clenched fist was clearly threatening in nature. The conduct could easily have formed the basis of a criminal charge of breach of the peace or of threats.

[29] The next question which falls to be considered is whether there is the necessary nexus between the 2007 incident and the prior incidents averred in condescendence 4 to enable it to be included in the alleged course of conduct. The submissions for both parties accepted that, in determining what amounted to a course of conduct, one could transpose the criminal test in Moorov cases to the civil wrong of harassment. I agree. A considerable number of authorities have dealt with the question of what amounts to a course of conduct in the application of the Moorov doctrine and I am of the opinion that it is appropriate to make use of the jurisprudence built up in that field when considering what amounts to a course of conduct in the civil wrong of harassment. I can see no valid reason why that should not be the case.

[30] I therefore turn to apply the law in Moorov to the alleged course of conduct in this case. It seems to me that the question is whether the 2007 incident has the necessary nexus in time, place and circumstances with at least one of the previous incidents. I am also of the view that, having regard to the very nature of harassment, the permissible time interval between separate incidents is probably in general less than is permitted in the case of other types of conduct. It was accepted that the pursuer stopped working on 25 September 2005. The shortest interval between the last incident at work and the 2007 incident is therefore in the order of 17 months. The place at which the 2007 incident occurred was a public street, whereas all previous incidents occurred in the pursuer's workplace, wherever that might have been at a particular time. Moreover, the circumstances of the 2007 incident are quite different: the pursuer was not at work at the time (and had not been for about 17 months), whereas in the previous incidents he was at work when the conduct complained of occurred. The 2007 incident was an opportunistic and isolated one.

[31] I therefore reach the conclusion that the difference in time, place and circumstances between the 2007 incident and the previous incidents is such that on no view could it form part of a course of conduct when taken along with the previous incidents. It is therefore irrelevant and falls to be deleted. That means that, according to the remaining averments in condescendence 4(i) - (ix) the action of harassment was not commenced within a period of three years from the date on which the alleged harassment ceased and is time-barred under section 18B(1) and (2)(a) of the Prescription and Limitation (Scotland) Act 1973. No case is pleaded by the pursuer that the court should exercise its equitable jurisdiction and allow the action to be brought under section 19A of the 1973 Act.

Decision

[32] For the reasons set out above I shall sustain the defenders' first plea-in-law to the extent of deleting the averments in condescendence 4(x) and their second plea‑in‑law and dismiss the action.