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Although the principle expressed by Sir John Romilly, sometimes referred to by the Latin expression generalia specialibus non derogant, is a valuable canon of construction, I do not consider that it applies in relation to section 66 and section 80 of the Highways Act 1980. Ratio |
That is because I do not think that it is possible to treat section 66(2) as a specific provision in contrast with section 80(1) as the more general provision. Ratio |
They are, as Mr Sauvain QC for the council submitted, simply different provisions concerned with overlapping aims and with overlapping applications. Ratio |
Each provision authorises a highway authority to erect posts, in the case of section 66 to [safeguard] persons using the highway, and in the case of section 80 for the purpose of preventing access to a highway. Ratio |
There is a relatively narrow exception, in section 66(5), to the circumstances in which section 66(2) can be relied on but by virtue of section 66(8), if it is relied on, it carries with it compensation; on the other hand, there are fairly widely drawn circumstances, set out in section 80(3), in which section 80(1) can... |
The notion that either of two independent provisions in the same statute can be invoked for a particular purpose may seem surprising, especially when that purpose involves an interference with a frontagers right of access by a public body, and when the provisions have significantly different consequences for the fronta... |
Accordingly, one can well understand why the Court of Appeal sought to reconcile section 66(2) and section 80(1) so as to avoid, or at least to minimise, any overlap. Ratio |
However, as Lord Carnwaths analysis in paras 13-19 above shows, the 1980 Act, like its predecessor was a consolidating statute, and, while it included amendments, it did not purport to rationalise and re-codify the existing law. Ratio |
Rather, it sought to bring into a single Act of Parliament most, if not all, of the various existing and rather disparate statutory provisions relating to highways, which had developed over the years in a piecemeal way, with a few amendments. Ratio |
That was equally true of the 1959 Act, as evidenced by the statutory provisions considered, and the approach taken to them by the House of Lords, in Westminster Bank. Ratio |
Extensive reference to the genealogy or archaeology of a consolidating statute is almost always unhelpful, and is sometimes positively confusing. Ratio |
However, in this case, once one appreciates the way in which the 1980 Act was put together, and more particularly the different statutory origins of sections 66(2) and 80(1), the force of the argument that the two provisions should be construed in a mutually exclusive way is substantially weakened. Ratio |
In view of the history of the 1980 Act, it is unsurprising that it includes provisions which substantially overlap, and courts should not therefore strain to find an interpretation which avoids or minimises such overlap. Ratio |
So far as the application of A1P1 is concerned, as the Grand Chamber said in Depalle v France (2010) 54 EHRR 535, para 78, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation. Ratio |
On that basis, it seems to me clear that the restriction of Mr Cusacks frontager rights, by depriving him of vehicular access to his property, did not involve the deprivation of a possession, within the second rule of A1P1, as identified in Depalle, para 77. Ratio |
However, I do accept, as did the council, that it falls within the third rule there identified, namely the control [of] the use of property in accordance with the general interest. Ratio |
As Lewison LJ said in the Court of Appeal, [2011] EWCA Civ 1514, [2012] PTSR 970, para 25, [E]ven on Mr Green's hypothesis the council is not proposing to rob Mr Cusack of all access to the highway. Ratio |
It is merely proposing to block vehicular access to the highway; and even then perhaps only access by four wheeled vehicles. Ratio |
So even on that basis he is not deprived of the right of access to the highway: the right is being controlled so that it can only be exercised in a particular way. Ratio |
Given that the disadvantage suffered by Mr Cusack falls within the third rule, I do not see how it can be said that the councils reliance on section 80, with the consequence that Mr Cusack receives no compensation, falls foul of A1P1. Ratio |
Although there is no general right to compensation where the third rule applies, that is not, I accept, the end of the matter: it is appropriate to consider whether the exceptions in section 80(3), and in particular the fact that Mr Cusacks case does not fall within them, can be said to be arbitrary. Ratio |
I do not consider such a suggestion to be supportable. Ratio |
Section 80(3)(c) and (d) are drawn so as to exclude accesses which are immune from enforcement under the planning legislation, as opposed to accesses which, under para (c), are the subject of planning permission or deemed planning permission, or which, in the case of para (d), pre-dated the planning legislation. Ratio |
I accept that the distinction between (i) actual or deemed permission and (ii) immunity from enforcement is somewhat narrow, but it undoubtedly exists and has long existed, and it is far from arbitrary or irrational, as Lord Carnwath explains in paras 20-25. Ratio |
Given that there is nothing in the argument that the councils reliance in this case on section 80, which carries no compensation, offends A1P1, I do not consider that the fact that the council could have relied on section 66, which would have carried compensation, alters that conclusion. Ratio |
The fact that these two provisions happen to have overlapping applications, but different consequences in terms of compensation, is explicable by reference to their different origins. Ratio |
A1P1 does not carry with it a general rule that, where the state seeks to control the use of property, and could do so under two different provisions, which have different consequences in terms of compensation, it is obliged to invoke the provision which carries some (or greater) compensation. Ratio |
Of course, as in domestic law (as explained by Lord Reid in Westminster Bank), in a particular case with special facts, there may be such an obligation, but no such special facts have been prayed in aid here. Ratio |
LORD MANCE RPC |
I agree that the appeal should succeed for the reasons given by Lord Carnwath in paras 27 to 50 and by Lord Neuberger in paras 61 to 69 of their respective judgments. RPC |
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 know amounts to harassment of the other. STA |
Harassment is both a criminal offence under section 2 and a civil wrong under section 3. STA |
Under section 7(2), references to harassing a person include alarming the person or causing the person distress, but the term is not otherwise defined. STA |
It is, however, an ordinary English word with a well understood meaning. PRE |
Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR). PRE |
One of the more egregious forms of harassment is the stalking of women. PRE |
But the Act is capable of applying to any form of harassment. PRE |
Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace (Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224); and campaigns against the employees of an arms manufacturer by political protesters (EDO MBM ... |
The present appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. Ratio |
The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Ratio |
Section 1(3) of the Act provides: (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any... |
The plaintiff, Mr Timothy Hayes, is a businessman who used to manage a number of companies involved in software development. FAC |
There is an issue about whether he also owns them, but for present purposes that does not matter. FAC |
One of Mr Hayess companies, IT-Map (UK) Ltd, used to employ the defendant, Mr Michael Willoughby. FAC |
In 2002, the two of them fell out. FAC |
Mr Hayes accused Mr Willoughby of attempting in conjunction with three employees of another of his companies, Nucleus Information Systems Ltd, to undermine Nucleus with a view to forcing it into liquidation and buying back its business for themselves. FAC |
These accusations were not fanciful. FAC |
The findings of an employment tribunal in 2006 and of Judge Moloney in these proceedings show that they were substantially justified. FAC |
In 2003, the two companies and the four employees were locked in litigation before employment tribunals, and Nucleus was suing all four men in the High Court for conspiracy, malicious falsehood and copyright infringement. FAC |
The High Court litigation was resolved at the end of 2004, when Nucleus accepted a payment into court. FAC |
The disputes about the conduct of the four employees and the resultant litigation are not themselves said to be part of the course of harassment. FAC |
They are part of the background and they are the occasion for it. FAC |
The course of conduct on which Mr Hayes relies began in late 2003, when Mr Willoughby embarked on an unpleasant and obsessive personal vendetta against him. FAC |
Mr Willoughby alleged that his management of his companies, principally in the accounting year 2002-3, was characterised by fraud, embezzlement and tax evasion. ARG |
The campaign was mainly carried on by pressing these allegations in very many letters addressed over the years to the Official Receiver, the police, the Department of Trade and Industry and other public bodies. FAC |
The judge recorded that the Official Receiver estimated that no less than 400 communications on the matter were exchanged between Mr Willoughby and the Official Receiver alone. FAC |
The Official Receiver obtained access to the companys records and investigated the allegations. FAC |
The DTI commenced two investigations under section 447 of the Companies Act 1985. FAC |
The police looked into the allegations. FAC |
All of them concluded that there was nothing in them. FAC |
They reported their conclusions to Mr Willoughby in increasingly strong terms, but he was not to be moved and continued to raise queries about what he professed to regard as their inadequate inquiries and illogical conclusions. FAC |
The position has now been reached, said the judge, that most of the relevant bodies are refusing to have any more to do with him, in particular because of their perception that when one of his allegations is conclusively refuted he will simply change his ground and put forward another with equal force. FAC |
The judge found that Mr Willoughbys words and acts constituted a course of conduct, linked by a common purpose and subject-matter, calculated to cause and in fact causing alarm, distress and anxiety to Mr Hayes. FAC |
Although he did not communicate directly with Mr Hayes, Mr Willoughby was well aware that his allegations and other conduct would get back to Mr Hayes and have that effect on him. FAC |
The judge concluded that this amounted to harassment, and it is no longer disputed that it does. FAC |
The sole remaining issue is whether Mr Willoughby is entitled to a defence under section 1(3)(a), on the ground that his campaign was pursued for the purpose of preventing or detecting crime. FAC |
On that point, the judges findings were as follows: (1) Mr Willoughbys conduct was gratuitous, for apart from some modest financial claims against Mr Hayes, almost all of which were resolved at an early stage of his campaign, he had no personal interest in establishing his allegations against Mr Hayes. RLC |
He was animated, the judge said, by mixed motives, including personal animosity to H (in fairness based largely on the same suspicions) and a sort of intellectual curiosity. RLC |
He quoted Mr Willoughbys evidence that it was an intellectual problem, like playing bridge. RLC |
(2) Mr Willoughby has at all times sincerely believed that Mr Hayes had stolen large sums from his companies in the United Kingdom and committed a variety of offences in the course of doing so. RLC |
He continues to believe this to the present day. RLC |
His campaign was throughout subjectively directed at the prevention or detection of crime. RLC |
(3) At the outset of the campaign, there was a reasonable basis for Mr Willoughbys suspicions. RLC |
But Mr Willoughby accepted, indeed asserted, that the crucial evidence was that of the companies bank statements which if examined would either prove or refute his allegations. RLC |
Once it became clear that the Official Receiver had examined this material and that it did not support Mr Willoughbys case, the judge considered that his persistence ceased to be reasonable. RLC |
The judge found that this stage had been reached by 14 June 2007, when the Official Receiver reported to him the conclusion of his investigation, or at the latest by 21 September 2007 when the Official Receiver sent him a schedule accounting for substantially the whole of the book debts of IT-Map in the relevant period... |
Thereafter, Mr Willoughbys persistence exceeded even the widest limits of reasonableness and became unreasonable and obsessive. RLC |
The inevitable conclusion, the judge said, is that he has developed an unshakeable conviction of Hs criminal guilt which now precedes rather than follows any objective assessment. RLC |
(4) The three incidents of personal intrusions into Mr Hayess private life (such as the contact with his GP) were never reasonable and had no relevant connection with the prevention or detection of crime. RLC |
But they did not constitute a separate course of conduct capable of amounting to harassment independent of the correspondence with the public authorities. RLC |
Some of these findings seem unduly charitable to Mr Willoughby. RLC |
But the judge heard the witnesses, and it is not for an appellate court lacking that advantage to substitute its own assessment of his state of mind. RLC |
The question is what is the effect of the findings as a matter of law. RLC |
It is common ground that in respect of the period up to June 2007 their effect is that Mr Willoughby is entitled to rely on section 1(3)(a) as a defence to the allegation of harassment. Ratio |
The question at issue is whether he remained entitled to do so thereafter. Ratio |
The judge dismissed the claim in respect of the entire period, because he considered that the test for section 1(3) of the Act was wholly subjective. Ratio |
It was therefore enough that Mr Willoughby genuinely believed in his allegations and wished to persist in investigating them. Ratio |
The Court of Appeal allowed the appeal, granted an injunction and remitted the matter to the county court to assess damages. Ratio |
Their reasons are given in the judgment of Moses LJ, with whom Sullivan and Gross LJJ agreed. Ratio |
There were, in summary, two reasons. Ratio |
In the first place, Moses LJ distinguished between the purpose of the alleged harasser and the purpose of his conduct, only the latter being in his view relevant. Ratio |
Whatever the avowed purpose of Mr Willoughby himself, the purpose of his conduct was not reasonably or rationally connected to the prevention or detection of crime after June 2007. Ratio |
To the extent that the course of conduct is adjudged irrational, or lacking in any reasonable connection to the avowed purpose of preventing or detecting crime, the likely conclusion will be that the purpose of the conduct was not preventing or detecting crime. Ratio |
As I read this statement, it is a conclusion of law derived from the judges findings, and not a rejection of those findings. Ratio |
Secondly, Moses LJ considered that the prevention and detection of crime had to be the sole purpose of the alleged harasser, and the intrusions upon Mr Hayess privacy, which the judge had found to be unrelated to the prevention or detection of crime, showed that it was not. Ratio |
The starting point of any analysis of this question is that there is no general rule as to how purpose is to be established when it is relevant to a crime or civil wrong. Ratio |
When purpose is relevant to the operation of a statutory provision, the question will depend on the construction of the statute in the light of the mischief to which it is directed. Ratio |
When it is relevant to a rule of common law, the answer will normally be found in the object of the rule. Ratio |
In his concurring judgment in the High Court of Australia in Williams v Spautz (1992) 174 CLR 509, para 4, Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, which is committed when a person conducts litigation for a purpose other than that for which the courts process i... |
Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce. Ratio |
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