Reflecting of Roberts- The recent Court of Appeal ruling on harassment.

I have been reflecting on the recent (and in my opinion, rather helpful ruling) in the case of Roberts v Bank of Scotland Plc.

Whenever anyone mentioned harassment under the Protection from Harassment Act 1997 before the Roberts ruling, the case of Conn v City of Sunderland [2007] EWCA Civ 1492 would crop up, normally along with the case of Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34.

The view coming from the Courts seemed to be that a civil claim could only arise as a remedy for conduct amounting
to a breach of s 1 of the Act, which by s 2 would also amount to a criminal offence. Certainly cases where a bank has telephoned its customer unreasonably it seemed an uphill struggle to get a claim for harassment off the ground. This was part of the reason why in Harrison v Link Financial Limited, the challenge surrounding the unfair telephone contact was based on the Unfair relationship provisions in the Consumer Credit Act 1974 as opposed to the PFHA 1997.

Of course there was the ruling in Ferguson v British Gas, however that was not so much about the conduct but the appeal centered on whether the case ought to have been struck out or not. The Court of Appeal finding that the case should go to trial and of course it settled very shortly afterwards.
However, the recent Court of Appeal ruling in Roberts seems to suggest that the Courts are willing to consider the issue of harassment when a creditor unreasonably pursues a debtor via the telephone. Its not a crime to be in debt, many people who are unfortunate to be faced with debts do not go out of their way to run up debts with the intention of never paying the money back. Most people who fall on hard times are honest genuine people, some with children, and some not, but nonetheless they do not deserve to be hounded and pressured by large corporations just because they cannot afford to pay what the bank demands. Lets not forget of course that much of the financial difficulties and economic issues which arose as a result of the banks. One only need look at the press reports to see that, yet the banks seem to think it is acceptable to hound people by telephone.

If your lender is making telephone calls to your home, place of work, mobile etc and you do not wish to discuss the matter by phone, something the Court of Appeal made clear was a debtors right, then you should write to the creditor and ask them to stop phoning you, if the calls are causing difficulties at work then make this clear in the letter too and if the calls are upsetting too, then make this clear too.

Make sure the letter is sent recorded delivery and most importantly, make notes of each and every call made to your phone and keep it safe.

If the creditor keeps calling then tell them you do not wish to discuss the matter over the phone, and if the calls are upsetting you then tell them this too. Many people find calls from creditors and debt collectors deeply upsetting, there is no shame to tell a bank that they are making you feel ill, or upsetting you by phoning or that they are placing your employment at risk by calling your work. Also i would suggest that if you are in a position where you simply cannot pay what the bank is asking you to pay, then tell them, make it clear to them both in writing and by phone, send them income expenditure details and make it clear to them that by phoning they are not going to get the funds they are seeking and all the calls with do is cause you more distress.

It is worth noting that in Roberts the bank rang 547 times in around 6 months, now that may seem a lot, but it equate to 3 calls per day based on 182 days in the 6 month period. In Harrison v Link, Mr Harrison was called more than 3 times some days, and in many of the cases i see, the debtors will get called three times per day per phone, sometimes there will be a call to the home, the work, the mobile etc so 547 calls some of which were unanswered, is not many when you break it down.

It is impossible to say whether a person will have a claim for harassment, as each case turns on its own facts. However, it does seem to me, if the facts and the circumstances are right, that a counterclaim could well be viable under the PFHA 1997 which will no doubt be seen as good news by many Defendants, but not so good news for the banks.

About paul @ watsons solicitors
Member of Chartered Institute of Legal Executives and a litigator for one of the leading firms of solicitors in Consumer Credit Act litigation. I was the fee earner in the landmark ruling of Harrison v Link Financial Limited and many other County Court decisions.

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