Roberts v Bank of Scotland Plc (Rev 1)

This judgment is in seven parts, namely:

This is an appeal by a bank which has been ordered to pay £7,500 damages to a customer whom it harassed by repeated telephone calls. The bank disputes both liability and quantum.

The claimant in this action and respondent in the Court of Appeal is Miss Amanda Roberts. The claimant is a 48-year-old lady who lives in Dewsbury.

The defendant in the action and appellant in the Court of Appeal is Bank of Scotland Plc. The defendant has taken over the business of Halifax Plc and that business now forms one division of Bank of Scotland. The entity with which the claimant dealt at all material times operated under the name "Halifax". I shall therefore refer to the defendant as "Halifax" or "the bank".

I shall refer to the Protection from Harassment Act 1997 as "the 1997 Act". Section 1(1) of the 1997 Act provides:

“1.

(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."

Section 2 of the 1997 Act provides:

“(1)

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

(2)

A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”

Section 3 of the 1997 Act provides:

Section 7 of the 1997 Act provides:

“(2)

References to harassing a person include alarming the person or causing the person distress.

(3)

A "course of conduct" must involve-

(a)

in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or

(b)

in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons.”

After these introductory remarks, I must now turn to the facts.

During 2007 and 2008 the claimant was a customer of Halifax. Her account was held at the Leeds office of the Halifax, but the branch which she regularly used was at Dewsbury. The claimant had three accounts with Halifax. There was a current account, a credit card account and a loan account. The current account had an overdraft limit of £1,250. The credit card account had a credit limit of £2,700. The loan account comprised a loan of £7,350, repayable in 86 monthly instalments commencing in April 2006.

There were periods when the claimant exceeded her overdraft limit on the current account or exceeded the credit limit on her credit card account. On the basis of the figures which counsel has mentioned in argument today, it appears that the amounts by which the claimant exceeded her limits were modest.

With a view to resolving these matters, the bank decided to contact the claimant by telephone. There is nothing objectionable in taking that course. The problem in this case lies in the sheer number of phone calls that were made and the content of those calls. According to the bank's log, bank staff made no less than 547 calls or attempted calls to the claimant over the period December 2007 to January 2009. The great majority of those calls were made during the first half of 2008.

The claimant made it perfectly plain to bank staff during these calls that she did not wish to talk to them and she wanted them to stop telephoning. The bank staff refused to desist. They insisted that they would go on telephoning until the claimant answered their security questions and discussed her financial position with them.

The claimant tape recorded some of these telephone calls. Transcripts of the recorded calls have been prepared and they make remarkable reading. The callers are a variety of different people, who ring from call centres dotted around Britain and Ireland. One caller callously talks about the bank ringing the claimant a hundred times or so.

The claimant was greatly distressed by the bombardment of phone calls from the bank. She took the view that this conduct amounted to harassment. Accordingly, she commenced the present proceedings.

By a claim form issued in the Dewsbury County Court on 27 April 2010, the claimant claimed damages for the harassment perpetrated by Halifax. On 13 August 2010, the claimant served her particulars of claim.

The claimant has at all times acted as a litigant in person. Nevertheless, her pleadings are clear and to the point. Paragraph 12 of the particulars of claim gives a fair indication of her case. This reads as follows:

After various interlocutory skirmishes, the details of which are not relevant, the bank served a defence and counter-claim on 29 November 2011. In its defence the bank admitted making a large number of phone calls to the claimant, but denied that these amounted to harassment. The bank averred that these were reasonable attempts to contact its customer. The bank also counterclaimed for outstanding sums due on the three accounts. These amounted to £10,941.37 plus interest.

The action came on for trial before HHJ Shaun Spencer QC at the Bradford County Court in February 2012. The claimant duly presented her case and gave evidence. Mr James Counsell, instructed by DLA Piper UK LLP, represented the bank. The judge delivered his reserved judgment on 10 February 2012. He concluded that the bank's phone calls did indeed constitute harassment. He awarded damages to be assessed. The judge also gave judgment in favour of the defendant for the sum claimed in the counterclaim. There has been no dispute about the counterclaim.

The hearing to assess damages took place at Bradford County Court on 27 September 2012. The judge assessed the bank's liability for damages in the sum of £7,500. I would briefly summarise the judge's reasoning in relation to quantum as follows. The judge concluded that some of the calls were intimidatory and that those calls must be viewed in the context of the totality of the calls, which were very frequent and on most days of the week. The judge regarded the claimant as a genuine witness. He noted her distress when the recordings of certain calls were played in court. He regarded that distress as genuine. The judge had regard to the authorities on quantum to which I shall refer a little later, and he concluded that the proper measure of damages was £7,500.

The bank was aggrieved by the judge's decisions, both on liability and quantum. Accordingly, the bank has appealed to the Court of Appeal.

By an appellant's notice dated 17 October 2012, the bank appealed against the judge's decisions on liability and quantum. In relation to liability, I would summarise the grounds of appeal set out in the appellant's notice as follows:

In relation to quantum of damages, the grounds of appeal relate the circumstances of the case at some length and then contend that the award of £7,500 was excessive and outside the margin of judicial discretion.

At the hearing of this appeal today, Mr Counsell appears for the bank, as he did in the court below. As before, the claimant, who is now respondent, appears in person.

Mr Counsell may possibly have detected in the course of his submissions that the court was not entirely sympathetic to this appeal. Despite that circumstance, Mr Counsell presented the bank's case courteously, fairly and fully. I am grateful to him for his assistance.

The claimant is also here, no doubt fully prepared to argue her case. In the event, we did not need to call upon her. The claimant readily accepted that in those circumstances she did not need to say anything in relation to the bank's appeal.

Having set the scene, I must now turn to the bank's appeal on liability.

In their daily lives most people regularly interact with friends, colleagues, opponents, acquaintances and strangers. Inevitably not all of these interactions are harmonious. Some cause annoyance and irritation, on occasions considerable annoyance and irritation. These inevitable turbulences of daily life have nothing at all to do with the crime of harassment. In the context of the 1997 Act, "harassment" is both a crime and a civil wrong. It connotes deliberate conduct directed against other people which attains a certain level of severity. Three recent authorities give guidance on the gravity of the conduct which is required to constitute harassment.

In Majrowski v Guy's and Thomas's NHS Trust [2006] UKHL 34; [2007] 1 AC 224, a clerical worker claimed damages for harassment by his departmental manager. Both the Court of Appeal and the House of Lords held that an employer could be vicariously liable for harassment by its manager and accordingly the claim should not be struck out. In relation to what constitutes harassment, Lord Nicholls said this at paragraph 30:

Baroness Hale observed that the aim of the 1997 Act was the prevention of harassment in all its forms. At paragraph 66, she continued:

In Sunderland City Council v Conn [2007] EWCA Civ 1492; [2008] IRLR 324, a paver employed by the Council alleged harassment by his foreman. Two specific incidents were established on the evidence. In the first incident, the foreman lost his temper. He threatened to smash the windows of the site cabin and to report three men to the personnel department. The claimant was one of those three men. The other two men were not bothered by the foreman's behaviour. In the second incident, the foreman lost his temper again. He threatened to give the claimant "a good hiding" even if that led to the foreman being dismissed.

The Court of Appeal held that the first incident was not serious enough to constitute harassment. The second incident did cross the line, but since more than one incident was required by section 7(3)(a) of the 1997 Act, the claimant's claim failed. Gage LJ emphasised the importance of the context in which the relevant conduct occurs. At paragraph 12, he said:

In Ferguson v British Gas Trading Limited [2009] EWCA Civ 46; [2010] 1 WLR 785, the defendant supplied gas to the claimant until 25 May 2006. Thereafter, owing to some technical error, the defendant sent a series of computer generated bills and demands to the claimant for sums which she did not owe. Some letters contained threats to disconnect the claimant's gas supply and report her to credit rating agencies. The claimant brought a claim for harassment which both Judge Seymour QC and the Court of Appeal refused to strike out.

Jacob LJ accepted that a course of conduct must be grave if it is to constitute the crime or the tort of harassment. He then added these comments in paragraph 18:

Fortified by this guidance from the authorities, let me now turn to the bank's conduct in the present case. The first point to make is that whenever the claimant exceeded her permitted level of indebtedness to the bank, she was in breach of contract. The bank was entitled to pursue its legal rights. The bank could sue the claimant for sums which were owing. If it wished to do so, the bank could withdraw its services from the claimant and leave her to take her custom elsewhere.

Before taking any of these drastic courses, it obviously made sense for the bank to contact the claimant and to seek a mutually acceptable resolution of the problem. Possibly the bank could help the claimant through a difficult period. Possibly the bank could set up a new arrangement for repaying the claimant's indebtedness. This might, for example, involve reduced instalments paid over a longer period. With these matters in mind, it made perfectly good sense for the bank to write to the claimant and also to telephone her. Indeed, any creditor should make contact with his debtor to request and discuss repayment before embarking upon formal legal proceedings.

The existence of a debt, however, does not give the creditor the right to bombard the debtor with endless and repeated telephone calls. The debtor is fully entitled to say that he or she does not wish to talk to the creditor. In those circumstances, the creditor is thrown back upon his formal legal remedies. That is what the courts are there to provide. They are there to ensure that creditors do not resort to the remedy of self help.

In the present case, the claimant made it abundantly plain that she did not wish to receive telephone calls from the bank. She was perfectly entitled to adopt this position. Once the bank had tried to telephone the claimant a few times and had received the same response on each occasion, it was obvious that telephoning the claimant would achieve nothing. Thereafter, there was no possible justification for continuing to ring the claimant up.

The judge took the view that the content of the phone calls made by the bank, combined with the frequency of those calls, constituted harassment. The bank challenges that conclusion for the reasons which I have summarised in Part 4 above. I will address those arguments in the order set out in the appellant's notice, bearing in mind the very helpful submissions with which Mr Counsell has elaborated those grounds today.

The first argument is that the judge failed to take into account the context in which the calls were made, in particular the fact that the bank had good reason to telephone the claimant. Mr Counsell found himself in considerable difficulties when developing this line of argument. The court, prompted by paragraph 12 of the claimant's particulars of claim, asked Mr Counsell to address the period 8 January 2008 to 11 February 2008 when there was a large number of phone calls and the content was particularly unpleasant. Mr Counsell explained that during this period the claimant had exceeded the limit on her credit card account. We asked by how much. Mr Counsell told us that the limit was £2,700. On 25 January 2008, the balance on that account was £2,789. So the claimant was £89 over the limit. At the end of the relevant period, the balance was £2,717. So the claimant was £17 over the limit.

During this period, as the judge found and as the appellant now admits, the bank had wrongly frozen the claimant's current account. A sum of £450 housing benefit was paid into the current account, which the claimant could have accessed if the account had not been frozen. That was more than enough to pay the small excess on the credit card account. Indeed, if the account had not been frozen, the bank could, and no doubt would, have, transferred funds across from the current account to the credit card account to resolve this matter without the need for any instructions from the claimant. Mr Counsell confirmed in answer to Arden LJ that the bank had this power.

I therefore take the view that the calls which the bank made during the period 8^th January to 12^th February 2008 were wholly unwarranted.

Let me now leave that aspect on one side and assume hypothetically that the claimant was to some extent overdrawn on every occasion when a member of staff rang the claimant. Even so, that context cannot possibly justify the number of calls which the bank made or their content. The mere fact that the creditor is a bank rather than a private individual does not give a licence to bombard the debtor with unwarranted and unpleasant phone calls. This court emphasised in the Sunderland case that the context is important. The context here is a well resourced bank with an automated dialling system and a series of call centres on one hand, contacting a single lady living alone, who appears to be in some financial difficulties. I do not accept that the judge overlooked any relevant features of the context in this case.

The second line of argument on behalf of the bank is that the staff who rang the claimant were civil and polite. This was a point Mr Counsell developed this morning. I do not accept this line of argument.

I shall read out two extracts from the transcripts. The first extract is to be found on pages 1 and 2 of one of the phone calls made on 8 January 2008. The claimant made it clear that she wished not to be telephoned again, but the caller refused to comply with this request. The claimant then said: "I mean, do I have to, do I have to do this, how many times a day are you going to ring me". The caller replied: "Well until you speak to us and co-operate with us we are going to continue to call you with regards to this matter". The claimant said "pardon?". The caller replied: "Until you’re willing to speak to us and co-operate with us we will continue to call you -- obviously that's why we need to speak to you urgently".

The second extract which I will read is to be found on pages 1 and 2 of one of the phone calls made on 10 January 2008:

Many similar passages can be found in the transcripts. The judge characterised these calls as intimidatory. I agree with that characterisation.

It is no defence to intimidation that the culprit couched the intimidatory words in polite language, if that is how one characterises extracts of the kind which I have just read out.

The third line of argument deployed in the appellant's notice is that the judge was selective in the extracts from the phone call transcripts which he cited. For my part, I would accept that the judge had to make a selection. It would have been impossible for him to set out in a judgment of reasonable length the entirety of the transcripts which have been furnished to this court. Nevertheless, I have read the entirety of those transcripts. I consider that the extracts set out by the judge give a fair flavour of the unacceptable phone calls, and that there are other phone calls similar to those from which the judge quoted. On some occasions the claimant says that the calls are making her ill. It can be seen that the bank staff take no notice. They say that they will continue telephoning.

The fourth argument on behalf of the bank is that the judge failed to apply the guidance in the authorities. I do not accept this argument. The judge identified the relevant authorities, including those which I have summarised above. He then considered whether the bank's conduct achieved the requisite level of seriousness to constitute harassment within the meaning of the 1997 Act. He concluded that it did.

Mr Counsell valiantly argued that the bank's repeated calls come nowhere near criminal conduct. I do not agree. I bear in mind and agree with the observations of Jacobs LJ in paragraph 18 of Ferguson as quoted above. In my view, the bank's conduct in the present case easily crosses the threshold. It was harassment which could have been prosecuted in the criminal courts. In the event, and fortunately for the bank, this matter simply comes before the civil courts as a claim for damages.

The fifth line of argument set out in the appellant's notice is that the judge failed to address the question of whether the bank knew or ought to have known that its conduct amounted to harassment. This is clearly a relevant matter because section 1(1) of the 1997 Act makes it clear that one element of the offence of harassment or the civil wrong of harassment is knowledge that what the defendant is doing amounts to harassment of the other person.

Very wisely Mr Counsell did not press this argument to any extent in his oral submissions. The bank must have been perfectly well aware of the phone calls which it was making. It kept a record of them in its log. The callers appear to have been keeping a record of the gist of the conversations which they had with the claimant. If they were not keeping such a record on occasions, they certainly should have been.

I suggested to Mr Counsell during argument that if the bank really wanted a constructive dialogue with the claimant, it may have been sensible for the manager of the Dewsbury branch to telephone the claimant. The manager, unlike the various people in the call centres, knew the claimant, and the claimant had more than once tried to talk to her.

Mr Counsell responded that banks like Halifax have large numbers of customers who are overdrawn at any given time. It is quite impracticable for the local manager to ring such people up. Instead, Halifax, like other banks, has a variety of call centres. There is apparently an automated dialling system, whereby a computer rings up defaulting customers. If the customer answers the call, then he or she is routed to any available member of staff at one of the call centres. It is the bank's case that a system like this is the only practicable one.

Although Mr Counsell made his submissions attractively, I am unpersuaded. The Dewsbury branch of Halifax will have had a finite number of customers who were seriously in arrears. I would have thought it simpler and cheaper for the local manager to telephone the claimant and try to talk to her, rather than unleash a monstrous system of 547 automated phone calls followed by a series of futile conversations. In these conversations the caller is always someone different. His or her knowledge of the claimant is gleaned from notes on a database.

In my view, the bank should amend its system so that it treats customers with courtesy, or at the very least so that it does not commit the crime and tort of harassment. If Mr Counsell is right in saying that the only practicable means by which a bank can contact defaulting customers is the method adopted in this case, then banks had better build into their costings the damages which from time to time they will be called upon to pay to those customers. There is also the matter of criminal penalties to be considered.

For the reasons indicated above, I would dismiss the bank's appeal on liability. The only remaining issue, therefore, is in respect of quantum of damages.

In assessing damages, the judge directed himself by reference to the Court of Appeal's decision in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871; [2003] ICR 318 and the Employment Appeal Tribunal's decision in Da'Bell v NSPCC [2010] IRLR 19. In Vento a probationary police officer was the victim of harassment and discrimination by other police officers. She was subsequently dismissed. The applicant brought proceedings in the Employment Tribunal and recovered damages under a number of heads.

The Court of Appeal held that the proper award in respect of injury to feelings was £18,000. Mummery LJ delivered the judgment of the court. At paragraph 65, he gave the following guidance in relation to the assessment of damages for injury to feelings:

In Da'Bell, the Employment Appeal Tribunal said that the figures in Vento should be increased for inflation as follows. The top bracket becomes £18,000 to £30,000. The second bracket becomes £6,000 to £18,000. The third bracket becomes £600 to £6,000.

Da'Bell was decided three years ago, therefore some further upgrading of the figures would be required to reflect inflation since 2010. For present purposes it is not necessary to do a precise calculation. It can be seen that the judge in the present case has selected a figure which is towards the bottom of the middle bracket.

Mr Counsell submits that the present case falls into the lowest of the three brackets; therefore the judge made an error of principle in awarding damages within the middle bracket.

I do not accept this submission. First, the judge, unlike this court, had the advantage of seeing and hearing the claimant give her evidence. He noted her distress when some of the phone calls were replayed in court, and he held that distress to be genuine. Secondly, when I look at the description of the three bands of cases as set out in paragraph 65 of Vento, the present case seems to me to be a classic example of a case falling within the middle band. It falls below the top band. The bank did not perpetrate a lengthy campaign of discriminatory harassment. Equally, the case falls above the bottom band. This is not a less serious case involving isolated incidents.

Mr Counsell submits that the bank was not deliberately targeting the claimant because of her vulnerability. This may not have been the bank's motive, but the bank was certainly targeting the claimant. Furthermore, the claimant's distress and vulnerability were made apparent to the various callers when they rang.

Mr Counsell submits that the bank was not making unwarranted threats. I do not agree. The threats to keep on ringing were unwarranted. It is even more unfortunate that the bank made many of these calls during a period when the claimant's credit card account would not have been overdrawn at all but for the bank's errors.

Mr Counsell submits that the claimant could have put an end to the calls if she had answered the bank's security questions. There are two answers to this. First, the claimant was under no obligation to answer security questions if she did not wish to talk to the bank. Secondly, I have found two instances in the transcripts where the claimant did answer the bank's security questions. That did not abate the flow of unwanted calls.

If I stand back from the detail and look at this case in the round, I am in entire agreement with the judge that this case falls within the middle band as defined in Vento. Where precisely the case falls within that band is a matter for the discretion of the trial judge. He alighted upon a figure of £7,500. I see no possible grounds for interfering with that assessment.

Accordingly, I would dismiss the appeal against quantum. I must now draw this judgment to a conclusion.

For the reasons set out in part 5 above, I would dismiss the bank's appeal on liability. For the reasons set out in part 6 above, I would dismiss the bank's appeal on quantum of damages. If my Lady and my Lord agree, this appeal will be dismissed on all grounds.

I agree, and only wish to add a few words to express my own clear view that the conduct of this bank in this case was such as to pass the threshold of harassment as prohibited by the Act, and well over the wrong side of the "sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour" mentioned by Lady Hale in Majrowski's case to which my Lord has already referred.

I only add the few words in particular because of the express plea appearing in paragraph 5 of the bank's defence and counter-claim to the following effect:

For my part, like the judge, I was shocked by the content of some of these calls. Further, the sheer number of the calls, coupled with the express threat of repetition until the bank's wishes were complied with, was, in my judgment, wholly unacceptable. The conduct was, as the judge said, intimidatory and controlling. In short, it was, in my judgment, obviously unlawful harassment. If that amounts to good banking practice, that is a very sorry misassessment by the banks of what commercial morality and indeed legality requires. If banks wish to employ automated systems of the type used here, they need to exercise considerably more care before the automation is triggered to the extent employed in this case.

I agree with my Lord also that the level of damages awarded was fully appropriate on the authorities, for the clear distress which the judge found had been, and I use the word consciously, inflicted by the bank on someone who was supposed to be its customer.

For those additional reasons, I agree that this appeal should be dismissed.

I also agree. I would add this. The bank should respect the rule of law and therefore it should, in the light of the judgments of this court, revise its systems and desist from any tortious conduct, and not simply factor into its working and operating costs the fact that from time to time the bank will have to pay damages for harassment.

I also add this: I particularly wish to stress the importance of the context in which alleged acts of harassment occur. As my Lord, Jackson LJ, has explained, section 1(1) of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to have known amounts to harassment of the other. Then in sub-section (2) it provides this, which is important for my point:

In Sunderland County Council v Conn [2007] EWCA Civ 46 at paragraph 12, which is quoted by Jacob LJ in Ferguson v British Gas Trading at section 5 of the bundle of authorities, Gage LJ held as follows:

Those observations about the context, although expressed perhaps tentatively, in my judgment express the law on this point, and in that I agree with the observations made by my Lord, Jackson LJ. In my judgment, section 1(2) clearly requires the court to take into account the full context of which the defendant is aware. The context included, in the present case of course, the identity of the person receiving the call, in this case a single lady with some financial problems, receiving calls on her private phone at home, some times in the evening. I need not amplify that point because in all the circumstances of the case, the bank could not assume that a person in the respondent's position would be unaffected simply because it might be water off a duck's back for a person in some other walk of life such as a commercial person.

Judges hearing these cases will have to take account of all the circumstances in order to assess whether section 1(2) is satisfied. There were of course in this case many other factors such as the state of account between the parties, the state of the correspondence and the respondent's declared wish not to enter into discussions with the bank. All those considerations have been considered in my Lord Jackson LJ's judgment with which I agree.

It follows that because the judge had to make an evaluation of a number of detailed factors, and from the fact that this court has to respect the primary advantage that the judge had of actually hearing the testimony and in this case the tapes which recorded some of the conversations, it will be difficult for an appellant to succeed in an appellate court without showing that the judge was plainly wrong, and it is not enough therefore to try to persuade the court that it should come to some other conclusion, or that it would prefer itself to have come to some other conclusion. That is not in fact this case. I agree with my Lord that it is a plain case.

Those are my further observations. I agree with the order that my Lord, Jackson LJ, proposed.