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David Gordon a partner at Atteys says “The case illustrates the importance of ensuring that only those debts which are properly owed should be pursued and even when pursued this must be done within the confines of the law. Some debt collection agencies use unlawful tactics. Lisa Ferguson sued after she received many threatening letters on behalf of British Gas even though she had switched suppliers and owed them no money. For eight months, despite her letters and calls, appeal to the British Gas Chairman and complaint to the relevant watchdog, letters from British Gas kept coming. She runs a property investment business and was worried her credit rating would be affected. She brought a claim saying the behavior of British Gas amounted to unlawful conduct under the Protection from Harassment Act, which makes it a civil and a criminal offence to engage in harassment.
The case did not get to a full hearing. The court of appeal simply said there was a case to answer. British Gas also maintained that a business which owed money could not come within the legislation. After learning that the case must continue, British Gas settled out of court with Lisa Ferguson and the court ordered that the costs of that hearing on both side be paid by British Gas.
The judge said:
"It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson…Because she funds the claim out of her personal resources, she does so at considerable risk: were she ultimately to lose she would probably have to pay British Gas's considerable costs."
The judge went on "[British Gas] sought to downgrade [the behaviour] by saying that Ms Ferguson knew the claims and threats were unjustified….That is absurd: a victim of harassment will almost always know that it is unjustified. The Act is there to protect people against unjustified harassment. Indeed if the impugned conduct is justified it is unlikely to amount to harassment at all."
Nor did the judge like the argument that as a computer system generated the chasing letters this was not harassment: "[British Gas] also made the point that the correspondence was computer generated and so, for some reason which I do not really follow, Ms Ferguson should not have taken it as seriously as if it had come from an individual….But real people are responsible for programming and entering material into the computer. It is British Gas's system which, at the very least, allowed the impugned conduct to happen. No amount of writing and telephoning had stopped the system so far – at times it must have seemed like a monster machine out of control moving relentlessly forward – a million miles from the 'world class level of service' (letter of 9th January) which British Gas says it aims to offer".
It was not necessary to prove a company had "actual knowledge" that its behaviour was harassment. "As at present it seems to me that all the Act requires of the victim is to identify the course of conduct and what passed between the victim and the alleged harasser. The court is then notionally to put knowledge of that and of any other relevant information into the mind of this reasonable person. The court then decides whether that person would consider that the course of conduct amounts to harassment".
The Consumer Protection from Unfair Trading Regulations 2008 makes it a criminal offence to send persistent, unsolicited communications and that may be another avenue for people to complain about company conduct. However, bailiffs were specifically excluded from that legislation and are allowed to be persistent but only in so far as that does not breach other criminal law such as this harassment legislation.
Contact us to help you collect your debts in a lawful and efficient manner or if you are the victim of illegally conduct by those pursuing you.
Call David Gordon on 01226 346818
Notes
1. The decision is on line at http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html
2. Case name Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46
3. The legislation provides:
"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.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other."
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