Harrassment (continued)greenspun.com : LUSENET : Repossession : One Thread
I'm no expert on this, but I've been checking out news reports (such as in the Guardian on 13th March) of an interesting case (from the point of view of many THRP readers) with regard to harassment law. It's all about a ruling which was delivered early in March to virtually no publicity.
There may be something here for many people to mull over, especially anyone who has ever received more than one written threat of court (which was not acted upon) from a lender or their agents.
A judge has held that, under the Protection Against Harassment Act 1997, a woman who had two [allegedly disparaging] articles published about her by the Sun was entitled to sue the paper on the grounds that it had harassed her. This is because the two articles constituted 'a course of conduct' [crucially, the judge ruled that just one published article would not have been enough to constitute a course of conduct] and that the conduct had caused the victim 'alarm or distress'. The judge ruled that just because the defendant was a newspaper, with a right to freedom of speech, it did not exclude it from the terms of the Act. The judge said, '...in my judgement the Act does give the claimant a right to protection from harassment from all the world including the press'.
This of course implies that lenders and their agents who publish letters which make threats which distress people are certainly not exempt from the Act.
I think it is inevitable that people on the receiving end of lenders' shortfall letters threatening court, bankruptcy etc, will be alarmed and distressed. More than one letter presumably constitutes a 'course of conduct'.
The Sun is to take the case to the Court of Appeal later this year, and the case may well go all the way to the Lords. But it may nevertheless be a useful precedent for THRP readers to consider, as it would effectively be a brand new course of action, especially if the lender has already stuffed its case against you by (a) messing up its documentary evidence by disposing of key material; and/or (b) being contemptuous of Civil Procedure Rules by refusing to document its case to you adequately.
The harassment case in question was held at Lambeth county court. The woman's name is Esther Thomas and her solicitor is Geoffrey Bindman. The judge is senior Judge Roger Cox.
From reading this Q&A board I know of a few of you who have received a number of letters from the lender or their agents/solicitors which threaten various distressing actions, but which are then not acted upon. Some of these communications have gone to work addresses, when your home addresses have been known to the lender.
I wonder if there could be some mileage in this route? But, like I said at the beginning of this post, it's just a non-expert idea, thrown up for discussion.
-- Eleanor Scott (firstname.lastname@example.org), March 27, 2001
Sorry, I really must learn how to spell (or at least type) 'harassment'.
-- Eleanor Scott (email@example.com), March 31, 2001.
Hmm, not wanting to rain on anybody's parade particularly, I doubt that a letter for private consumption would constitute harassment unless it was more than 'personally disparaging'. There is a big distinction between private/public material.
However, from experience and those of people I know, any publicly indiscrete acts from debt collectors intended to embarrass their debtors are covered under the harassment legislation and courts and the police take this seriously. For example: a debt collection agency cannot call at your house in a large white van marked 'We collect bad debts'. Equally, they cannot approach your employer, and if (as happened to me) they write to you at the office, you can ask them to desist immediately, and if they don't... that's harassment.
Nonetheless, an interesting thought. Bindman also represents Keith Vaz btw... but he does have a fantastic reputation as a human rights lawyer.
-- Andy Turner (firstname.lastname@example.org), April 02, 2001.
One of my legal texts (in my growing collection) defines harassment, among other things, as
" 2. it is an ofence im England to harass a person with demands for payment that are calculated to subject him or his household to alarm distress or humiliation or to pretend that criminal proceedings mignt be possible if payment is not made:Administration of Justice Act 1970"
I believe this definition to be pertint in this post. Although Andy's point is a good one I feel that, in view of the above, the lenders actions could clearly constitute harassment. The rule of thumb that is followed by the courts is "The defendent will be taken to know that his conduct amounts to harassment if a reasonable person in possession of the same information would think that it amounted to harassment. A course of conduct must involve conduct on at least two occasions and conduct includes speech."
Maybe its time to get the opinions of some independent people who would constitute "reasonable people in possession of the same information".
As a side thought even if the lenders say "We had every right to write to the shortfallee...." the a possible response could be that the lenders refusal to evidence their claim on more than one occasion could constitute harassment. If you have asked for evidence twice and they have failed to provide it, then this (in my opinion) constitutes a course of conduct that ignores the Civil Procedure Rules and clearly demonstrates the lenders intentions to persue the debt through intimidation of the shortfallee. This then constitutes a course of conduct that is calculated to subject him or his household to alarm distress. My case rests M'Lud.
Eager for any responses if anyone sees andy holes in my logic.
-- Tim Heath (email@example.com), April 02, 2001.
I could be wrong, Andy, but it was my understanding that the Protection Against Harassment Act was actually specifically designed to protect people from what used to be regarded as 'private' material (e.g. the endless stream of letters a person might get from an ex who won't go away). Bindman's clever ploy was to use the harassment legislation to combat what was a very public harassment of his client.
Can I just add some other food for thought (apologies for repeating this from a thread further down):
I read this in the Guardian dated 31st March 2001:
"Using the threat of prosecution to ensure payment of a disputed civil debt could offend against s21 [Section 21] of the Theft Act 1968, which prohibits making an unwarranted demand for gain with menaces, and would amount to blackmail."
The author was barrister Richard Colbey, writing in the Jobs & Money supplement (p 24-25) about the rail company Connex's pusuit of disputed civil debts, which he appears to believe is flawed in its approach for reasons including the one quoted above, i.e. the provisions of the Theft Act 1968.
-- Eleanor Scott (firstname.lastname@example.org), April 04, 2001.