The Court of Appeal in Rushton v Tompkins & Anor [2017] EWCA Civ 1995 considered a case where for many years a Mr Rushton had been conducting a campaign against the RICS. His campaign was by email and by posts on social media, and through a website called Implacable Hostility. 

The Court of Appeal (Lewison LJ) said "throughout the campaign he has accused the RICS, employees and former employees of the RICS of dishonesty, corruption, hypocrisy, conspiracy to cover up wrong-doing and perversion of the course of justice. His language is personally abusive and in some cases his emails have been threatening."

On 13 March 2017, May J had decided that the campaign amounted to harassment and granted an injunction against Mr Rushton to stop it.

The case before the Court of Appeal (Lewison LJ) was that Mr Rushton sought permission to appeal the decision by May J.

Lewison LJ referred to the case of  DPP v Hardy [2008] EWHC 2874, in which Pill LJ said that conduct which may begin as a legitimate enquiry may turn into harassment if persisted in an unacceptable manner.  Lewison LJ said " the question whether they were capable of amounting to harassment was, in my judgment, adequately answered by the judge by reference to a sample of the communications. They plainly were capable of amounting to harassment, both because of the number, the vituperative nature, the personal abuse, and all the other factors, which she mentioned".

May J had said in her judgment that the mere fact that Mr Rushton had complained aggressively and offensively would not have justified an injunction. It was: 'The quality of relentless persistence of wild allegations against anyone at the RICS who enters his orbit that transforms what started as a justifiable grievance into abuse to the point of harassment.'

May J  had said that it was the content and the quantity of communications emanating from Mr Rushton which did cross the boundary into harassment. One or two of the emails she said, would not cross the line, 'they would be dismissed as the ravings of a disappointed man'.

It was argued on behalf of Mr Rushton that there was insufficient evidence to demonstrate that alarm and distress had been caused to any individuals employed or formerly employed by the RICS. Lewison LJ  said: 'It is, to my mind, still an open question whether it needs to be shown by evidence that distress has been caused. That was left entirely open by Lady Hale in Majrowski and Guy's and Thomas's NHS Trust [2006] UKHL 34. 

It is true that in Hayes v Willoughby [2013] UKSC 17, Lord Sumption said in the first paragraph of his judgment: '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 and Newsgroup Newspapers Limited.'

Lewison LJ  said: In fact the reference to the paragraph in Thomas does not bear out the assertion that the conduct does in fact cause alarm and the Act does not have that statutory requirement. Nevertheless, the judge in this case proceeded on the basis that such a finding of fact was a necessary ingredient of the tort. She found it proved by reference to the evidence of Mr Tompkins, the CEO of the RICS. It is said that she inferred that distress and alarm had been caused. I do not agree. She accepted the evidence that was before her. Mr Tompkins refers to distress caused to members of the staff of the RICS, some of whom he named in a number of parts of his evidence. That was evidence on a Part 8 claim, which the judge was entitled to accept.

Mr Rushton's response was to complain that he was deprived of the right to cross-examine the RICS staff who were said to have suffered alarm and distress. The judge had said that there was sufficient material before her to enable her to reach a conclusion. Since there was evidence, albeit second hand hearsay evidence, which is fully admissible in a civil trial, she was entitled to accept that evidence.

The procedure for bringing a claim under the Protection from Harassment Act is required by the CPR to be begun by a Part 8 claim by virtue of rule 50, Part 65, rule 28. CPR Part 8, rule 8 makes provision for an objection to the use of the Part 8 procedure to be made in a defendant's acknowledgment as service. No such objection was taken in the acknowledgment of service although Lewison LJ  said: 'it is fair to say that Mr Rushton in his first witness statement did say that if it was alleged that RICS employees had suffered acute alarm and distress he reserved the right to cross-examine them. Mr Beaumont, counsel at the time for Mr Rushton, did try to agree with those representing the RICS that there should be cross examination. They refused to agree but nonetheless said that if it was desired for cross-examination to take place, Mr Rushton should make an application for an interlocutory order to that effect. No such application was ever made and no application for an adjournment was made to the judge. In those circumstances I consider that the judge was entitled to proceed on the materials that she had in the absence of cross-examination, and of course in the absence of cross-examination there was no reason for her not to accept the evidence given by Mr Tomkins'.

The last point before the Court of Appeal was that the injunction granted was too wide because it extended to former employees of the RICS. Lewison LJ  said: 'Since the early days of the Act it has been held that a company can bring proceedings on behalf of its employees. The procedural mechanism used for that purpose was the making of a representation order under CPR Part 19.6. The only relevant requirement for the making of such an order is that the parties have the same interest. Do former employees harassed by Mr Rushton have the same interest as current employees whom he harasses? In my judgment it is clear that they did. There was therefore nothing wrong in the RICS bringing proceedings on behalf of all its employees, both past and present who were caught up in Mr Rushton's campaign of vilification'.

Lewison LJ  said:  'I am satisfied that the appeal would have no prospect of success, and consequently I refuse permission and see also his Order