Covert surveillance can constitute harassment


Re: Gerrard & Anor v (1) ENRC Ltd (2) Diligence International LLC [2020] EWHC 3241 (QB)

In these proceedings, the Claimants brought claims for breaches of data protection law, misuse of private information, harassment, and trespass arising from surveillance activities carried out on behalf of the First Defendant by various persons, including the Second Defendant. The proceedings form part of high profile litigation between Mr Gerrard, ENRC and others related to proceedings claiming damages of breach of fiduciary duty and negligence. The Defendants sought summarily to dispose of: (1) the entirety of the Claimants’ claim for harassment pursuant to section 3 of the Protection from Harassment Act 1997 and (2) various aspects of the Claimants’ case that the Defendants are not entitled to rely on litigation privilege in respect of the surveillance and other activities.

Held: dismissing the application for summary judgment/strike out and granting the Claimants’ application for permission to amend. It was considered that covert surveillance could constitute harassment under the PHA, even if the defendant did not intend the surveillance to be discovered. Furthermore, the sending of the letters by solicitors could form part of the ‘course of conduct’. It was also decided that as the Claimants’ case to iniquity and absence of confidentiality was at least arguable, it should not be struck out.

Lorna Skinner was involved in this case.