J U D G M E N T

1. LORD JUSTICE GAGE: This is a renewed application for permission to appeal by way of an oral hearing. Mr Hatch, the applicant (the claimant in proceedings), seeks to appeal a decision of His Honour Judge Harris QC given at the Oxford County Court on 15 July 2005. The judge by his order dismissed the applicant's claim for damages under the Protection from Harassment Act 1997. The nature of the claim by the applicant was that his former wife, the defendant to the claim and respondent to this application, pursued a course of conduct between 1998 and 2000 which amounted to harassment for the purpose of the 1997 Act.

2. The factual and procedural background is as follows, so far as is material for the purposes of this application. The applicant and the respondent married in July 1997. The marriage was the applicant's second and the respondent's third. The applicant and the respondent ceased living together on 30 August 1998. The respondent started divorce proceedings in October 1998 on the grounds of the applicant's unreasonable behaviour. In March 1999 the applicant started divorce proceedings on the basis of the respondent's unreasonable behaviour. The respondent agreed not to contest his petition. Her petition was dismissed and the marriage finally dissolved by a decree absolute being pronounced on 9 December 1999. The order of the Reading County Court, dated 31 August 1999, details the withdrawal of the respondent's petition and an undertaking by the applicant to apply for a decree nisi, which is what he did. On the basis of this order the parties signed a letter acknowledging that neither had made any admissions in respect of the allegation made in the proceedings. I shall refer to that letter later in this judgment.

3. In January 2004 the applicant started these proceedings against the Chief Constable of the Thames Valley Police as the first defendant and the respondent as the second defendant. The allegations against the Chief Constable concerned several causes of action connected with an arrest of the applicant in October 1998. However, by order made in the Oxford County Court, the proceedings were divided into two separate trials. The trial between the applicant and the respondent was ordered to take place first, and it is that trial in respect of which permission is sought to appeal.

4. The applicant alleged that the respondent engaged in a course of conduct aimed at him which was oppressive and unreasonable and calculated to cause him alarm or distress. He also alleged that the respondent was trying to drive him to suicide, the fate of her second husband. Before me today he does not put that anywhere near the forefront of his case.

5. The allegations regarding the respondent's conduct made by the applicant were numerous. At trial, the judge found the following facts to have been established. First, the applicant was arrested on 5 August 1998 after having spent some time in a bar with the respondent, and was detained by police until 6.30 the following morning; secondly, the parties from time to time met together in bars; thirdly, the respondent did spend some time with a male friend; fourthly, there was an incident on 31 March 1999 when the respondent hit the applicant where he was trying to serve a document on her; and fifthly, the parties did meet each other at Didcot Station on 6 April 2000.

6. The judge in his judgment at paragraph 25 identified what he said were the four most salient allegations. I shall summarise those as follows. First, in respect of the circumstances which led to the applicant's arrest on 5 August, there were no grounds for inferring that the respondent had procured or conspired to make mendacious complaints to the police or that the whole exercise was a stage-managed set-up with the aim of having the applicant arrested. Secondly, the allegation regarding the respondent's alleged scheme to induce the claimant to commit suicide was unsubstantiated; thirdly, the judge found that the respondent had hit the applicant on 31 March 1999 but he found also that that was an isolated incident; and fourthly, the judge found that the respondent's comments regarding the applicant's daughter and drugs were expressions of concern rather than part of a campaign to harass or blackmail him. In conclusion, the judge found that the respondent was not engaged in a course of conduct calculated to cause alarm or distress such as to give rise for a claim for damages under the 1997 Act. In the final paragraph of his judgment, he said:

"In conclusion, I do not find that the claimant has established a cause of action in harassment. He has demonstrated to me that he is an unusual and probably difficult man to live with. He is married to a wife who wanted to leave, who had shown him no affection or sympathy, who found pleasure or solace with another man, and who wanted to get some money out of him. I have no doubt that the defendant was often unpleasant to, and about, the claimant and that she was by no means always a reliable witness. But she did not want him to kill himself and while not above seeking to score off him and put him in a bad light, was not, I find, engaged in a course of conduct calculated to cause alarm or distress such as to give rise to a right to damages under the Protection from Harassment Act. The matters complained of, so far as relevant and established, were not, I think, part of any calculated plan or plot, but periodic or sporadic manifestations of dislike which marked the collapse of an ill-advised marriage. In those circumstances, I give judgment for the defendant."

7. In his grounds of appeal and in his submissions to me, Mr Hatch has made no secret of the fact that he regards the judgment and the conduct of the trial as a travesty of justice. As he, with great courtesy, but bluntly, put it to me, he feels that he has been the victim of a "stitch-up". He feels that the trial did not follow the procedural rules that it ought to have done and he makes no secret of the fact that he feels that the judge was biased against him from the word go. In his notice of appeal the applicant has set out in, if he will allow me to say so, a more focused way, four grounds upon which he specifically criticises the judgment and the way that the trial was conducted. First, he argues that the judge was wrong in law not to apply CPR 16(5) to the general denials made by the respondent in her defence. His point about this is simply that the defence was a bare denial of the allegations which he made; when the respondent's witness statement was served it provided a much more detailed explanation in respect of the allegations made by him. He submits that, in accordance with an application which he made pre-trial, the judge ought to have directed that an amended defence be put in by the respondent setting out precisely what her case was.

8. Next, the applicant submits that the judge was wrong in law in two respects. He submits that his allegations that were set out in his petition for divorce should have been taken by the judge as proved. He relies on the principles of estoppel for that submission. Next, and associated with that submission, is a ground of appeal in which the applicant relies on the decision of the court of criminal appeal in Pratt v Director of Public Prosecutions and also Tuppen vMicrosoft. He submits, in relation to those two decisions that, it is an abuse of the process for a party to raise matters in a section 3 harassment claim that could have been raised in response to a previous action. As I have said, that is associated with his second ground of appeal. Effectively, what he is submitting is that the matters relied upon by the respondent in defence of this claim were matters which she should have put forward in the divorce proceedings and it is an abuse of process to permit those to be put forward in defence of his claim.

9. Finally, as I have already indicated, he submits that the procedure adopted by the judge was essentially unfair.

10. I shall deal with each of these grounds in turn. So far as the first ground is concerned, as I have said, it raises CPR 16(5). To some extent, in my judgment, that is a red herring. It may be that, strictly, the respondent ought to have filed an amended defence. But what is clear is that solicitors on her behalf filed a witness statement which set out the detail of what was to be her evidence and was taken as her evidence. Accordingly, that having been filed well before the hearing, the applicant could not have been taken by surprise by what was in that document and her evidence. In any event, to some extent it assisted him because it contained the admission that she had struck him on one occasion. So far as that matter is concerned, in my judgment the applicant was not in any way prejudiced by the failure to amend the defence in his conduct of the case, albeit it may have been a breach of the rules.

11. The next ground, which as I say is in two parts, is of more substance. The first part of it is that the judge was bound by the principle of issue estoppel and ought not to have allowed the respondent to contest matters which are set out in his divorce proceedings. So far as that is concerned the judge dealt with the submissions in the following way at paragraph 14 of the judgment, which reads:

"The claimant's contention in this respect is not sound. The divorce court had to be satisfied that the marriage had broken down irretrievably on the basis that it was satisfied that the respondent had behaved in such a way that the claimant could not reasonably be expected to live with her: Matrimonial Causes Act 1973, section 1. The judge has so expressed himself, but that was not as a result of any detailed consideration, let alone adversarial testing of the evidence. No explicit finding of any particular fact was made. In these circumstances, no question of res judicata arises. Nor, in my judgment, is there any question of issue estoppel. A party for a divorce choosing not to contest allegations is not to be regarded as having admitted them. Indeed, in this case, there was a note in a form of words suggested by the District Judge to meet this very point and signed by both parties. The court, while expressing itself satisfied that the marriage has broken down because of unreasonable behaviour, was not thereby authenticating or finding proven any particular allegation in the petition. So I find that this short-cut is not available to the claimant."

12. In my judgment, his summary of the relevant law was correct. In any event, as the judge said, the matter is put beyond doubt by the note that both parties signed. It reads:

"The order of 20th July 1999 is agreed on the basis that neither party has made any admissions in respect of allegations which have been made in the proceedings save as already pleaded."

It may be - I know not, I do not believe that Mr Hatch would accept this - that part of the reasons for taking these proceedings was in fact to show who was responsible for the breakup of the marriage. Be that as it may, in my judgment there can be no question of issue estoppel in relation to the divorce proceedings.

13. So far as the associated matter is concerned, namely, the question of the background set out in the divorce matter being taken as part of the case against the respondent, Mr Hatch relies particularly on the decision of the court which was set out in his skeleton argument and to which the judge referred. It revolves around the issue of whether or not there was proved a cause of conduct sufficient to satisfy section 3(1) of the Protection from Harassment Act 1997. He submits that the background set out in the divorce proceedings, together with four other matters proved in these proceedings, was quite sufficient on the authorities to provide a course of conduct.

14. The judge again dealt with this as a matter of law in paragraphs 7, 8 and 9 of his judgment. First of all, he set out the terms of section 1(1) of the Protection from Harassment Act 1997. Next, at paragraph 8, he dealt with the question of Tuppen v Microsoft, R v Hills and Pratt v DPP. He said:

"Harassment in its ordinary meaning means pursuing a course of conduct calculated to annoy, pester, distress or alarm. These words are very wide and not every course of conduct known or intended to annoy would amount, in my judgment, to harassment. In Tuppen v Microsoft, 14/7/2000 (I have not seen a full transcript) Douglas Brown J appears to have accepted a submission that the Act is directed at the prevention of stalking, anti-social behaviour by neighbours and racial harassment and that a civil remedy was only available in such circumstances. But it is clear that there might be situations in which, in a matrimonial context, the Act could be utilised. In R v Hills [2001] FLR 580, Otton LJ said this: 'The state of affairs which was relied upon by the prosecution was miles away from the stalking type of offence for which the 1997 Act was intended. That is not to say that it is never appropriate so to charge a person who is making a nuisance of himself to his partner or wife when they have become estranged ... The stalking category either postulates a stranger or an estranged spouse.'"

It is clear that the judge directed himself that conduct in matrimonial proceedings can be such as to amount to a course of conduct susceptible to a claim for harassment under the Protection from Harassment Act 1997. The judgment continued at paragraph 9:

"In Pratt v DPP[2001] EWHC Admin, 483, Latham LJ, in the Divisional Court, indicated, 'The mischief which the Act is intended to meet is that a person should not be put into a state of alarm or distress by repetitious behaviour.' Where the incidents are few and widely spaced in time, 'The issue for the court is whether or not [they] can properly be said to be so connected in type and context as to justify the conclusion that they can amount to a course of conduct.'"

That again, with respect, is an accurate statement of the law. Accordingly, the judge plainly had well in mind what had to be proved in order for the claim by the applicant proved necessary for damages to be awarded.

15. Essentially, therefore, the issue for the judge to decide was one of fact. Mr Hatch clearly believes that the judge's findings of fact were not correct and ought to be overturned by this court. The Court of Appeal rarely interferes with findings of fact. The job of a judge at first instance is to find the primary facts. In this case the judge has done so. In my judgment, there is no possible argument to persuade this court that the findings of fact made by the judge are incorrect.

16. The next matter with which I must deal is the ground of appeal which alleges that the procedure adopted by the judge was unfair. A number of matters, as I have already said, are relied upon by Mr Hatch. He states that he was not permitted to open the case. The fact is that there was a skeleton argument which was before the judge and there is no reason to suppose that he did not read it. In any event, whether or not a party opens a case is a matter for the judge to decide in the exercise of his discretion. Next, Mr Hatch submits that he was prevented from cross-examining to the fullest extent that he required the evidence of the respondent. So far as that is concerned, Mr Hatch accepts that he was permitted, although the judge had at first indicated he would not be so permitted, to cross-examine on the second day of the hearing. He submits that he was not given sufficient time to complete his cross-examination. Again this is a matter for the judge to deal with in the exercise of his discretion.

17. I am bound to reflect that, having heard Mr Hatch courteously present his case and arguments, it has to be said that his submissions from time to time are somewhat prolix and unfocused and, to some extent, repetitious. It may be that the judge for that reason curtailed, to some extent, both the submissions and the cross-examination; but there is nothing in the papers that I have seen to substantiate the fact that Mr Hatch was unable to have a fair trial. As I have said, the essential decision for the judge to make was a factual decision. He directed himself correctly as to the law and, in my judgment, there is no prospect of a successful appeal. Accordingly, I refuse to grant permission.

(Application refused; no order for costs).