On 8 March 2019, Her Honour Judge Melissa Clarke sentenced Michael Willoughby for several five breaches of a harassment injunction, which had originally been ordered in 2011 by the Court of Appeal ( EW Misc 5 (CC)).
The Judge gave Willoughby a suspended sentence. The injunction had been ordered during a series of appeals concerning the statutory defence to harassment found under s 1(3)(a) of the Protection from Harassment Act 1997 (conduct pursued for the purpose of preventing or detecting crime).
In 2013, during a period of litigation arising from a business dispute, Willoughby embarked on a vendetta against Hayes. Willoughby sent numerous letters to public bodies, in which he alleged that Hayes was involved in fraud, embezzlement and tax evasion. However, it was found that there was no evidence to support the allegations. Nonetheless, Willoughby continued with his campaign, going further and intruding into Hayes’s private life.
Harassment claim at first instance
At the first instance hearing in 2010, HHJ Moloney QC found that Willoughby’s conduct amounted to the offence of harassment under the Protection from Harassment Act 1997, s 1(1). However, the judge concluded that Willoughby had a defence under s 1(3)(a) of the 1997 Act. In his view, the test for a defence under s 1(3)(a) was wholly subjective. Consequently, he held that Willoughby’s campaign was directed at the prevention of crime on the basis that Willoughby genuinely believed Hayes had committed an offence.
Harassment claim at the Court of Appeal
The Court of Appeal ( EWCA Civ 1541) allowed the appeal. The Court held that the purpose of Willoughby’s conduct, after Hayes had been vindicated, could not reasonably be connected to the purpose of preventing or detecting crime, and that the prevention or detection of crime had to be the sole purpose of the alleged harasser. The test for a defence under s 1(3)(a) was wholly objective.
Therefore, once Hayes had officially been cleared of the allegations, and Willoughby began intruding into Hayes’s private life, Willoughby had no defence. The Court of Appeal ordered an injunction against Willoughby, preventing him from, amongst other things, communicating directly or indirectly with any third party concerning Hayes, or collecting any information relating to Hayes.
Harassment claim at the Supreme Court
The Supreme Court disagreed with the Court of Appeal’s reasoning concerning the defence under s 1(3)(a) of the 1997 Act dismissed the appeal by majority of 4 to 1, upholding the injunction ( UKSC 17). Lord Sumption, with whom Lords Neuberger and Wilson agreed, did not accept that that a distinction could be drawn between the purpose of a course of conduct and the purpose of the person engaging in it. Therefore, a wholly subjective test could not be applied. However, the majority also found a wholly subjective test equally problematic.
In the view of their Lordships, the correct control mechanism was found in the concept of rationality. The test of rationality applies a minimum objective standard, requiring some logical connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or of outrageous reasoning. Their Lordships stated that rationality was a familiar concept in public law but distinguished it from reasonableness and, in particular, the categories of Wednesbury unreasonableness.
Their Lordships considered that from the point at which Willoughby was informed by various public bodies that they had found no evidence to support his allegations, his campaign was more than objectively unreasonable: it was irrational. On that basis, the Supreme Court upheld the injunction first imposed by the Court of Appeal.
Harassment claim remitted to assess damages
The case then came back to HHJ Moloney QC to assess damages in respect of the period after Hayes was entitled to recover ( 7 WLUK 698). The judge held that a long campaign of harassment did not constitute one single and indivisible cause of action. Rather, it could give rise to a series of successive causes of action. Therefore, he awarded damages to Hayes for anxiety, alarm, distress and injury to feelings.
Hayes and Willoughby returned to court in February 2019. At the conclusion of a three day trial, HHJ Melissa Clarke found Willoughby to be in contempt of court for five breaches of the injunction order. The breaches flowed from a meeting between Willoughby, Hayes’s ex-wife and her current partner, and Hayes’s trustee in bankruptcy.
In that meeting, Willoughby had attempted to prevent Hayes from litigating satellite cases which had arisen, or furthering his financial affairs, by agreeing to indemnify the other parties for various heads of loss that might arise. He also began undertaking actions, which represented a return by Willoughby to the obsessive type of behaviour that characterised his harassment and which the injunction had aimed to stop.
HHJ Clarke, sitting in the County Court, imposed five concurrent 6 month custodial sentences to run concurrently, suspended for a period of 18 months. HHJ Clarke considered that Willoughby understood the seriousness of a breach of injunction and consequently a suspension would have the effect of securing his compliance with the injunction in the future.
As noted by HHJ Clarke, this is the latest chapter in a long history of litigation which has gone on for the last fifteen years or so, in the county court, the High Court, the Court of Appeal and Supreme Court. That litigation has altered the test to be applied when determining whether a course of conduct gives rise to statutory protection against the offence of harassment from a wholly subjective test to a test of rationality.
However, this most recent chapter may be the last. Her Honour was of the opinion that Willoughby finally understood the gravity of breaching the injunction that had been ordered against him, even if his contrition was more to do with being found to be in contempt rather than for the harm caused to Hayes.
Samuel Rowe is a student at the University of Oxford.