11/02/2009

The Gas Man Cometh

The case of Ferguson v British Gas [2009] EWCA Civ 46 concerns a complaint that British Gas harassed a former customer for some 6 months after she had transferred her gas supply to nPower. Although it is not a housing case, the report contains some useful discussion of the nature of harassment by a large corporate body which, as we have seen is regrettably familiar to housing lawyers.

Mrs Ferguson changed her gas supplier from British Gas to nPower in May 2006. From August 2006 for some 6 months she received a stream of bills and letters threatening to cut off her supply; start legal proceedings and report her to various credit reference agencies. She appears to have spent considerable time trying to persuade British Gas to stop doing so, but although some of her communications were responded to with apologies and promises that the threatening letters would stop, they did not.

Mrs Ferguson brought a claim for £10,000 in Bromley Count Court against British Gas pursuant to s.1 of the Protection from Harassment Act 1997, which British Gas sought to have struck out. Their application was transferred to the High Court and there refused by HHJ Seymour QC. British Gas appealed.

British Gas offered three main arguments in support of the strike out:

  • the conduct was not sufficiently serious to amount to criminal harassment which was the same standard to be applied to civil harassment;
  • Mrs Ferguson would have known that the threats sent to her were unjustified and so could not have felt harassed by them;
  • the threatening letters were sent by automatically by computer and so could not amount to harassment; and
  • in suing a corporate body, Mrs Ferguson was required to identify a particular natural person and prove they had the requisite knowledge of the harassment in order for her claim to be properly made out.

The court of appeal accepted on the clear authority of Majrowski v Guys and St. Thomas’s NHS Trust [2007] 1 AC 224 Sunderland v Conn [2008] EWCA Civ 148 that the gravity of conduct was the same in the civil and criminal forms of harassment (the only difference being the standard of proof) but found that the conduct alleged could be sufficient for a criminal conviction under s.2 of the act. 

The second and third points were rejected in no uncertain terms by the court. On the question of the making of unjustified threats Jacob LJ said:

That is absurd: a victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all.

and on threats made by a computer:

How is a consumer such as Ms Ferguson to know whether or not, for instance, a threat such as “we will tell a credit reference agency in the next 10 days that you have not paid” (letter of 2nd January) will not be carried out by the same computer system which sent the unjustified letter and all its predecessor bills and threats? After all no amount of writing and telephoning had stopped the system so far – at times it must have seemed like a monster machine out of control moving relentlessly forward – a million miles from the “world class level of service” (letter of 9th January) which British Gas says it aims to offer.

The court felt unable to form more than a preliminary view on the corporate liability point because it had not been fully argued before them. The court’s preliminary views are nonetheless interesting.

A corporate body may of course be vicariously liable for harassment  but what if a claimant is unable to point to an individual who has primary liability?

The Court’s view was that on the first limb of s.1 — that the defendant knew that the course of conduct amounted to harassment — the company was taken to have the knowledge of its employees even if senior management were unaware. Thus there did not need to be an employee with primary liability. Furthermore the Jacob LJ thought that where an arguable case of conduct amounting to harassment by a corporation was raised by a claimant, the burden shifted onto the defendant to show absence of knowledge (since the claimant would not usually be in a position to know who might have knowledge).

On the second limb — that the defendant ought to have known that the conduct amounted to harassment — the court’s view was that the proper test was to supply the reasonable person with knowledge of the conduct and any other relevant information. The defendant ought to have known if the reasonable person would in those circumstances realise that the course of conduct amounted to harassment.

On that analysis the knowledge of any individuals within British Gas would be irrelevant.

If the court’s view on the correct test for whether a corporation ought to have known of harassment is followed, it will make claims for harassment against large and seemingly impersonal bodies like British Gas that much easier. For housing lawyers this case may make useful reading when dealing with large corporate landlords who through incompetence or other forms of inflexibility cause their tenants harassment, alarm or distress.

3 Comments

  1. Jim

    Council Tax departments and / or the enforcement firms they employ could also be in the firing line.

    Similarly, enforcement firms seeking to collect fines or other debts. In these cases, the information that the offender or debtor is either a previous occupier or is completely unknown and appears to be simply someone who has got away with giving a false address is routinely ignored. The result is not only a deluge of threatening letters, but unpleasant and aggressive visits.

    Reply
  2. Steven

    I thought Lisa could have just asked for an injunction ordering British Gas to stop. If the case had gone to full trial, there is still a risk that her claim may not succeed.

    Reply
  3. Francis Davey

    Interesting. An injunction would probably not have done the job very well: an interim injunction would probably have been breached but by the time a committal hearing was underway the harassment would probably have stopped. A final injunction might not have been granted by the time of trial (and we never got there).

    On the other hand a PHA injunction has a power of arrest and breach is a criminal offence. Trouble is most small litigants don’t want to try prosecuting (that might have concentrated the mind of BG).

    Reply

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