Simon Davenport QC (instructed by Leverets) for the Defendants
MR JUSTICE JAY:
Introduction
Throughout this judgment I will be referring to the First Claimant, Mr Thomas Hodson, as “TH”, the Second Claimant, Hodson Developments Limited, as “HDL”, the Third Defendant, Mr David Darby, as “DD”, the Fourth Defendant, Mr Laurence Darby, as “LD”, and their company Darby Groundworks Limited as “DGL”. DD is the managing director of DGL and his elder brother, LD, is the senior contracts manager.
The Parties Unknown have not been identified and the claims against them cannot therefore be pursued.
HDL is a building and property development company. Its directors are TH and his father, Mr Alan Hodson. As TH explains in his first witness statement, HDL is developing and constructing the Chimlington Green site which is a 1,000 acre Garden Suburb town extension in Ashford, Kent. Building started in 2017 and 5,750 houses and associated amenities will be constructed over 25 years. Phase 1 consists of 1,500 units and is part complete. I have not been told how many units form Phase 2 and the detail does not matter for the purpose of this claim.
Between 2018 and 2019 HDL entered into three sub-contracts with DGL for the following:
(1) Contract 1 for the groundworks for 67 houses and associated estate roads as well as foul and storm water drainage (Phase 1A). The contract price was £2,478,543.
(2) Contract 2 for the groundworks for 50 houses etc. (Phase 2A). The contract price was £2,898,256.
(3) Contract 3 for the construction of a 7m deep wet well for a Foul Water Pump (the Pump Station).
Disputes have arisen under these contracts. The resolution of these disputes cannot be my function, but they constitute important, relevant background to the present claim.
By this CPR Part 8 Claim TH and HDL seek final injunctions and damages pursuant to s. 3 of the Protection from Harassment Act 1997 in respect of alleged acts of harassment perpetrated at the instance of DD and LD. The basis of the claim is a number of threatening phone calls and voicemail messages made or left by persons unknown in March 2021, culminating in the grant of an interim order by this court on 23rd April. The alleged harassment ceased when the interim injunction was personally served on 27th April.
The nature of the harassment will be set out in greater detail below, but for these present introductory purposes I set out what the caller said on 16th March:
“… I have been trying to call you. Pay the Irishman the 1.5 million pounds or else. … You know who the Irishman is. You better contact him or else.”
DD and LD deny that they arranged or orchestrated this call or any of the calls that followed. They accept that they are of Irish origin but deny that this links them to the calls. Whether they were owed £1.5M is less clear and I will have to address that. It is DD’s and LD’s case that TH has concocted these calls in the sense that he is behind them. In a nutshell, the issue for me to resolve is whether TH and HDL can satisfy me on the balance of probabilities that these calls were made and that DD and LD were, inferentially, behind them.
Claims under the Protection from Harassment Act 1997 must be brought under CPR Part 8 but they need not remain there. The Order for an Injunction made on 23rd April 2021 by Mr Recorder Smith sitting as a Deputy Judge of the High Court required DD and LD to state reasons under CPR Part 8.8(1)(b) why the claim should be transferred to CPR Part 7 by no later than 4pm on Friday 7th May 2021. That did not happen. Given that it must have been clear to those advising DD and LD that there were substantial issues of fact, the CPR Part 8 procedure was no longer appropriate. At the very least, an application should have been made for a direction under CPR Part 8.6(2) and (3) as to oral evidence and cross examination. Fortunately, Leading Counsel for the parties very sensibly agreed that justice could not possibly be done in this case without the written evidence being thoroughly tested. It has proved unnecessary to make a formal order for transfer.
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