KB-2024-000054 - [2025] EWHC 2733 (KB)

Control of cross-examination

The claimants contend that s.85G of the Courts Act 2003 has the effect of prohibiting the defendant from cross-examining their only witness, the second claimant, Mr Howard. They contend that prohibition applies automatically because on 25 January 2024 Chamberlain J granted an interim injunction which, they submit, is an “on-notice protective injunction” within the meaning of s.85G and the relevant regulations.

Section 85G of the Courts Act 2003 provides, so far as relevant:

“(1)

In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.

(2)

In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.

…

(4)

In this section ‘protective injunction’ means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.

(5)

For the purposes of this section, a protective injunction is an ‘on-notice’ protective injunction if-

(a)

the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or

(b)

the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.”

For the purposes of Part 7A of the Courts Act 2003, “civil proceedings” include “proceedings in the High Court” (save for two exceptions which are inapplicable). The interim injunction was undoubtedly “on-notice”. It was granted at a hearing on 25 January 2024 of which the claimants and defendant had notice (s.85G(5)(b)) and, although that is sufficient to make it an “on-notice” injunction, there was a hearing on 4 March 2025 at which the defendant’s application to vary or discharge the interim injunction was heard (s.85G(5)(a)). The question is whether it was a “protective injunction”.

The regulations made pursuant to s.85G(4) are The Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022 (2022/568) (‘the Regulations’). For the purposes of s.85G(4), the “injunctions, orders and interdicts in Schedule 2 are protective injunctions”: regulation 3. Table 1 of Schedule 2 identifies protective injunctions and orders under the law of England and Wales:

The claimants contend that the interim injunction granted by Chamberlain J falls within the definition of a “protective injunction” either because it was granted pursuant to s.3A of the Protection from Harassment Act 1997 (‘the 1997 Act’) or because it is a “common law injunction”.

Sections 1(1) and 3(1)-(3) of the 1997 Act provide:

“1(1) 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.”

“3(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2)

On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

(3)

Where –

(a)

in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b)

the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.”

Sections 1(1A) and 3A of the 1997 Act provide:

“1(1A) A person must not pursue a course of conduct –

(a)

which involves harassment of two or more persons, and

(b)

which he knows or ought to know amounts to harassment of those persons, and

(c)

by which he intends to persuade any person (whether or not one of those mentioned above) –

(i)

not to do something that he is entitled or required to do, or

(ii)

to do something that he is not under any obligation to do.”

“3A(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (‘the relevant person’).

(2)

In such a case –

(a)

any person who is or may be a victim of the course of conduct in question, or

(b)

any person who is or may be a person falling within section 1(1A)(c),

may apply to the High Court of the county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.

(3)

Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a).”

The Particulars of Claim which were before Chamberlain J when he made the interim injunction allege that the defendant “pursued a course of conduct amounting to harassment of C2 and those of whom his situation is representative, contrary to s1(1) of the Protection from Harassment Act 1997, as D at all times knew or ought to have known”. The claimants brought a claim pursuant to s.3 for breach of the statutory tort of harassment. There is no allegation in the Particulars of Claim of breach of s.1(1A) and the pleading does not address s.1(1A)(c). Sections 1(1A) and 3A were not relied on before Chamberlain J, nor referred to by him ([2024] EWHC 537 (KB)). It is clear that the interim injunction was not made pursuant to s.3A of the 1997 Act.

There is some force in the claimants’ contention that it is implausible that the omission of any express reference to s.1(1) of the 1997 Act is the result of a deliberate decision to exclude an injunction in harassment made with reference to s.1(1) from the protective effect of the Regulations. Certainly, the reason for the omission is unclear. Nevertheless, there is no basis on which I could read into table 1 of Schedule 2 a reference to section 1 and/or 3 of the 1997 Act, in circumstances where reference to those sections is omitted, in contrast to the express reference to sections 3A and 5A of the 1997 Act.

The claimants’ alternative argument is that this is a common law action for breach of statutory duty. They contend that s.1(1) imposes a statutory duty, breach of which is a common law tort. They refer to Lord Wright’s identification in London Passenger Transport Board v Upson & anr [1949] AC 155 at 168 of the distinction between common law rights arising from breach of a statutory duty on the one hand and, in that case, a claim for negligence on the other.

I reject the claimants’ analysis. As the authors of Duncan and Neil on defamation and other media and communication claims (6^th ed., 2025) correctly observe at §30.01, citing s.3, the 1997 Act “created a new tort of harassment”. Judges of the Media and Communications List have, on occasions too numerous to mention, referred to the tort created by s.3 as the “statutory tort of harassment”. It was in the context of the claim brought pursuant to that statutory tort, as well as the claim for breach of contract, that interim relief was granted.

I recognise that, as Lord Reed PSC, Lord Briggs JSC and Lord Kitchin observed in Wolverhampton City Council v London Gypsies and Travellers [2024] AC 983, at [17]:

“The injunction is equitable in origin, and remains so despite its statutory confirmation. The power of courts with equitable jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unlimited: Spry, Equitable Remedies, 9th ed (2014) … The breadth of the court’s power is reflected in the terms of section 37(1) of the 1981 Act, which states that: ‘The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.’ As Lord Scott explained in Fourie v Le Roux (ibid), that provision, like its statutory predecessors, merely confirm and restates the power of the courts to grant injunctions which existed before the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66) (‘the 1873 Act’) and still exists. That power was transferred to the High Court by section 16 of the 1873 Act and has been preserved by section 18(2) of the Supreme Court of Judicature (Consolidation) Act 1925 and section 19(2)(b) of the 1981 Act.”

In my judgment, the equitable origin of the injunction does not have the effect that an injunction imposed in a claim for breach of the statutory tort of harassment created by s.3 is a “common law injunction” for the purposes of table 1 of Schedule 2 to the Regulations. Counsel for the claimants, Mr Barnes KC, did not contend otherwise. The automatic prohibition on cross-examining in person imposed by s.85G (read with the Regulations), which applies to the protected person as well as the person against whom a protective injunction has been made, has a significant impact on the ability of those persons to represent themselves in proceedings, which militates against such a broad reading of the term “common law injunction”.

Moreover, I note that s.85I of the Courts Act 2003 gives the court the power to give a direction prohibiting a party to the proceedings from cross-examining (or continuing to cross-examine) a witness if there is no automatic prohibition (ss.85F to 85H being inapplicable) and:

“it appears to the court that –

(i)

the quality condition or the significant distress condition is met, and

(ii)

it would not be contrary to the interests of justice to give the direction.”

The circumstances in which those conditions are met are defined in s.85I(2) and (3). The claimants have not, at this stage, sought to rely on s.85I. But it is clear that it provides a power to prohibit cross-examination that may, potentially, be available to the trial judge. In any event, the court has extensive power pursuant to CPR 32.1(3), and in accordance with the overriding objective, to control the evidence and limit cross-examination. However, it is also fair to note that the issues are limited by reference to the pleaded cases, the time for cross-examination of Mr Howard proposed by the defendant in his suggested trial timetable, namely one hour, is not excessive.