A “death knell” for litigation surveillance?

The High Court has dismissed an application to strike out a claim for harassment relating to surveillance activities, and to strike out various aspects of the claim that the defendants could not rely on litigation privilege.[1]  The court held the claim was not suitable for summary determination, and there was at least a real prospect that arguments advanced by the defendants were wrong.

The court also rejected a key argument put forward by the defendants that, because the surveillance was conducted covertly, it could not have been calculated to cause distress to the claimants and so did not amount to harassment. The judge noted that the word “calculated” does not appear in the relevant legislation and held that its mention in some of the authorities does not mean that there is a further mental element contained within the concept of “harassment”. So it was not appropriate for the harassment claim to be struck out, even if all the surveillance had been conducted covertly, and there was, in any event, evidence from the claimants that it had been discovered contemporaneously.

Comment

The judge robustly rejected an argument made by the defendants to the effect that acceding to the claim would “sound the death knell for surveillance activities which are legitimate and even necessary”, holding that this argument was “exaggerated and without foundation”. He noted that the courts plainly recognise the need to carry out a balancing exercise between competing rights and interests, and that precisely how the balance falls to be struck in any particular case “typically depends on an intense focus on the facts”.

Despite the judge’s forceful rejection of that argument, the decision will cause concern both to those who conduct surveillance and those who engage them.  The risk of liability for harassment under the Act attaching to covert surveillance activities could have a chilling effect on such activities, and so it will be worth noting how these issues will be dealt with by the trial judge.

To read the full article, click here.  Written for Entertainment Law Review.