LORD JUSTICE DILLON: The court has before it an appeal by the defendant in this action against an interlocutory order made by His Honour Judge Stockdale Q.C. in the Barnet County Court on 10th July 1992. By the relevant part of that order it was ordered that the defendant be forbidden from using violence to, harassing, pestering or communicating with the plaintiff in any way until the trial of this action or further order.
The matter came before Judge Stockdale on 10th July on an application by the plaintiff to commit the defendant to prison for breach of an injunction granted by an earlier order made in the county court on 19th May 1992. By that order of 19th May the defendant had been restrained, until the trial of the action or further order, from (1) molesting, harassing or otherwise interfering with the plaintiff and (2) from entering or coming within 200 yards of 69 Halliwick Road, London N.10 (the home of the plaintiff's parents) or any other address at which the plaintiff may reside.
On 10th July Judge Stockdale refused the application for the defendant's committal (and his reasons for refusing it are immaterial to this appeal). He also granted the new injunction which I have indicated in his order of 10th July in place of the injunctions in the order of 19th May. His reasons for changing the injunctions seem - conjecturally - to have been firstly that to grant an injunction in the terms of paragraph (2) of the order of 19th May was contrary to the decision of this court in Patel v. Patel [1988] 2 F.L.R. 179, to which I shall have to refer, and, secondly, that the wording of his order "using violence to, harassing, pestering or communicating with" the plaintiff would be simpler, and more readily intelligible to the defendant, than the wording in the order of 19th May "molesting harassing or otherwise interfering with" the plaintiff. The choice of words is an aspect of the case which we have to consider.
The substantive point of the appeal is, however, that it is said for the defendant that Judge Stockdale had no jurisdiction to restrain the defendant from "harassing pestering or communicating with" the plaintiff because those words did not reflect any tort known to the law and an interlocutory injunction could only be granted to protect a legal right of the plaintiff. On this point we have been referred to a substantial number of recent decisions, several of them as yet unreported, in a developing field of law. Many of the decisions are not easy to reconcile with each other. It is accepted, however, by Miss Harry Thomas for the defendant that an injunction to restrain the defendant from assaulting or attempting to assault the plaintiff - or, if preferred, from using violence to her - would be justifiable in law because trespass to the person is a recognised tort.
There is also before the court an appeal by the defendant against an order of Mr. Assistant Recorder Ansell made in the Barnet County Court on 29th October 1992 whereby he refused an application by the defendant to vary or discharge the order of Judge Stockdale for excess of jurisdiction. The assistant recorder took the view, with which I have every sympathy considering the importance and difficulty of the issues involved, that the application was better directed to this court and it was not for him to interfere with Judge Stockdale's order. We have not heard argument on the appeal from the assistant recorder because that appeal is academic whichever way we decide the appeal against Judge Stockdale's order, and because also of difficulties of listing which have limited the time available for argument.
The defendant was born on 13th August 1969 and thus is now a young man of 23. The plaintiff was born on 28th March 1974 and is thus now a girl of 18. They are not, and have never been, married to each other and they have never cohabited with each other. Thus there is no jurisdiction in this case to grant an injunction against "molestation" under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976, nor has the plaintiff sought to invoke that Act.
The power of the county courts to grant injunctions, whether interlocutory or final, in cases where the county court has jurisdiction, is the same as the power of the High Court. The statutory authority is now section 37(1) of the Supreme Court Act 1981, which provides that the High Court may by order (whether interlocutory or final) grant an injunction "in all cases in which it appears to the court to be just and convenient to do so". It is well understood, however, despite the apparent width of those words, that, as Lord Diplock put it in relation to the predecessor of section 37(1) in The "Siskina" [1979] A.C. 210 at 245E -
"That subsection, speaking as it does of interlocutory orders, presupposes the existence of an action, actual or potential claiming substantive relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary".
Therefore it is necessary to consider what claims for substantive relief, or causes of action, the plaintiff has against the defendant. I say "has" against the defendant rather than "is asserting against the defendant by her pleadings" because it is conceded on behalf of the defendant that at this stage in this particular case the plaintiff should not be limited to her actual particulars of claim, which are in informal language and were issued in a hurry when the first application to the county court for an injunction was made. The pleadings can be amended, or if technically necessary a further action can be started and the two can be consolidated. It is therefore appropriate to consider the whole of the plaintiff's evidence, to determine what causes of action she appears to have on that evidence, and to consider what interlocutory injunctions the court has power to grant on that evidence. It is fair to the defendant to say that he has sworn affidavits disputing the plaintiff's account of events, but the immediate question is what causes of action the plaintiff has if she is right as to what has happened.
It is, of course, not in dispute that an interlocutory injunction can, in an appropriate case, be granted quia timet before an actual tort has been committed against a plaintiff. It is also clear that the form of an interlocutory injunction does not have to follow slavishly the form of the substantive relief which would be likely to be granted at the trial if the plaintiff succeeds. In Fresh Fruit Wales Ltd. v. Halbert and Others (decided by this court on 18th January 1991) Parker L.J. said at page 6F of the transcript:
"... if the situation which arises at the date when the interlocutory order is sought is such that the interest of the parties can in justice best be guarded by some order which would not be appropriate at the end of the trial, there is no reason whatever why the learned judge should not do so".
Instances which spring to mind are orders for the preservation of some property in safe custody until trial, and orders to preserve the status quo until trial, when on American Cyanamid principles it is not possible to resolve the substantive dispute between the parties on an interlocutory application.
In the present case the plaintiff and the defendant first met in the spring of 1990 at a snooker club in North Finchley which they and other young people of their acquaintance frequented. They became friends. From April or May 1991 to August 1991 they did not see each other, as the plaintiff had gone to live in Streatham with a friend with whom she worked. In August 1991 the plaintiff returned to her parents' home and started seeing the defendant again. At about the same time the defendant underwent psychotherapy following suicide attempts. For a short period the plaintiff and the defendant worked together on a surveying project which proved abortive. But the friendship then broke down. As the defendant put it in one of his affidavits, "The [plaintiff] and I were friends but she told me that she wanted no more to do with me". That she wanted no more to do with him is something which the defendant has, plainly, been unable to accept.
Among the earlier complaints of the plaintiff are complaints that the defendant assaulted her over Christmas 1991 and in the early months of 1992. There were also threats of violence, he behaved aggressively when he saw her, and followed her around shouting abuse. Also he pestered her with telephone calls to her parents' home and at her grandmother's, to such an extent that the telephone number had to be changed. Also in January 1992 he stole her handbag from the snooker club and told her that he would keep it as a momento of her.
As a result of threats and abusive behaviour to the plaintiff he was arrested by the police on 7th March and kept in custody over the weekend until 9th March when the magistrates gave him a 12 months' conditional discharge. Notwithstanding that, the defendant made further threats against the plaintiff, and on 13th May 1992 he was sent to prison by the Hendon magistrates for threatening to kill the plaintiff. He remained in prison until 25th June. In addition, so far as criminal proceedings are concerned, on 1st October 1992 the defendant was fined for offences under the Telecommunications Act 1984 in respect of his telephone calls to the plaintiff, viz. making calls for the purpose of causing annoyance, inconvenience or needless anxiety to others.
The plaintiff's case is that the aggressive behaviour, pestering and harassment on the part of the defendant have continued, with the persecution by telephone calls. This conduct has been directed not only against the plaintiff, but also against her mother and against her current boy friend and the boy friend's mother. In addition, the plaintiff complains that the defendant has maliciously damaged her car by scratching the paintwork.
Miss Harry Thomas for the defendant concedes, as I have already indicated, that an injunction could be granted to restrain the defendant from assaulting or threatening to assault the plaintiff. She concedes also that an injunction could be granted to restrain the defendant from interfering with the plaintiff's property, e.g. there could be an injunction to restrain wrongful interference with goods such as the taking of the plaintiff's handbag, or to restrain malicious damage to property, such as, if sufficiently proved, the making of the scratches on the paintwork of the plaintiff's car. In relation to the telephone calls, she concedes that if the plaintiff's mother has a freehold or leasehold interest in the parental home, the plaintiff's mother could complain of persistent unwanted telephone calls made by the defendant to the plaintiff's mother in the parental home, as that would fall within the tort of private nuisance. But she submits, in reliance on the decision of this court in Malone v. Lasky [1907] 2 KB 141 that the basis of the tort of private nuisance is interference with the employment of a person's property, and therefore the plaintiff, as in law, a mere licensee in her mother's property with no proprietary interest, cannot invoke the tort of private nuisance or complain of unwanted and harassing telephone calls made to her in her mother's home.
To my mind, it is ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.
Miss Harry Thomas submits, however, that English law does not recognise any tort of harassment or invasion of privacy or, save in the different context of such a case as Rookes v. Barnard [1964] AC 1129, intimidation. Therefore, she says, that, save as expressly conceded as set out above, the defendant's conduct to the plaintiff is, even on the plaintiff's version of it, under the English civil law legitimate conduct of which the plaintiff has no power or right to complain.
I apprehend that it is correct, historically, that the tort of private nuisance, which originated as an action on the case, was developed in the beginning to protect private property or rights of property, in relation to the use or enjoyment of land. It is stated in Clerk & Lindsell on Torts, 16th Edition, paragraph 24-01 that "the essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land".
That a legal owner of property can obtain an injunction, on the grounds of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home was decided by the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell [1976] 73 D.L.R. (3rd) 62. The court there rejected, by reference to English authority, a submission (at page 67) "that the common law does not have within itself the resources to recognise invasion of privacy as either included in an existing category or as a new category of nuisance and that it has lost its original power, by which indeed it created itself, to note new ills arising in a growing and changing society and pragmatically to establish a principle to meet the need for control and remedy; and then categories to develop the principles as the interests of justice make themselves sufficiently apparent". Consequently, notwithstanding Malone v. Lasky, the court held that the wife of the owner had also the right to restrain harassing telephone calls to the matrimonial home. Clement J.A. who delivered the judgment of the court said at page 78:-
"Here we have a wife harassed in the matrimonial home. She has a status, a right to live there with her husband and children. I find it absurd to say that her occupancy of the matrimonial home is insufficient to found an action in nuisance. In my opinion, she is entitled to the same relief as is her husband, the brother".
I respectfully agree, and in my judgment this court is entitled to adopt the same approach. The court has at times to reconsider earlier decisions in the light of changed social conditions; in this court we saw an example of that, only the day before the hearing of this appeal began, when we were referred to the case of Dyson Holdings Ltd. v. Fox [1976] 1 Q.B. 503. If the wife of the owner is entitled to sue in respect of harassing telephone calls, then I do not see why that should not also apply to a child living at home with her parents.
Damage is, in the relevant category, a necessary ingredient in the tort of private nuisance, and I shall have to refer further to that later. So far as the harassing telephone calls are concerned, however, the inconvenience and annoyance to the occupier caused by such calls, and the interference thereby with the ordinary and reasonable use of the property are sufficient damage. The harassment is the persistent making of the unwanted telephone calls, even apart from their content; if the content is itself as here threatening and objectionable, the harassment is the greater.
In relation to harassment by telephone calls, there is also the decision of this court (Sir John Arnold P. and Sir Roualeyn Cumming-Bruce) in Burnett v. George decided on 6th March 1986 but only recently reported in [1992] 1 F.L.R. 525. There, in a context in which, as in the present case, section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 was not applicable, it was held that an injunction to restrain harassment by telephone calls should only be granted if there was evidence that the health of the plaintiff was being impaired by molestation or interference calculated to cause such impairment, in which case the relief should be granted to the extent necessary to avoid the impairment of health.
It is to be observed that in that case the attention of the court was not directed to the cases concerned with interference with the ordinary and reasonable enjoyment of property as being a nuisance. It was directed instead to a different line of authority - Wilkinson v. Downton [1897] 2 QB 57 and Janvier v. Sweeney [1919] 2 K.B. 316 - which establishes that false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause and actually causing physical injury to the person to whom they are uttered are actionable: see the judgment of Wright J. in Wilkinson v. Downton at page 59 cited by Bankes L.J. in Janvier v. Sweeney at pages 321-2. There was a wilful false statement, or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical injury, viz. illness of the nature of nervous shock.
From this two points follow.
Firstly, in my judgment, the decision in Burnett v. George does not preclude this court from taking a wider view of the telephone harassment under the heading of private nuisance in the light of the interference with the ordinary and reasonable enjoyment of property since that was not considered at all in Burnett v. George.
Secondly, Janvier v. Sweeney is authority that verbal threats made orally to a person are actionable if they cause illness. This is of somewhat the less importance in the present case since the actual threats (as opposed to other acts of pestering in addition to the telephone calls) were threats to assault and it is not in doubt that, even without consequent illness, such threats can be restrained by injunction, because they are threats to commit a tort.
The injury for which damages were claimed in Wilkinson v. Downton and Janvier v. Sweeney was in both those cases described as "nervous shock". On modern authorities in the law of negligence, that term is understood as referring to recognisable psychiatric illness with or without psychosomatic symptoms - see per Lord Bridge in McLouqhlin v. O'Brien [1983] 1 AC 410 at page 431H - or, as put by Lord Wilberforce in the same case at page 418B, as recognisable and severe physical damage to the human body and system caused by the impact, through the senses, of external events on the mind. It is distinguished from mere emotional distress. From the judgment of Bankes L.J. in Janvier v. Sweeney, it seems that he had much the same concept in mind, in that he refers in various citations to physical damage inflicted through the medium of the mind.
In the present case, the plaintiff in her evidence refers to the defendant's conduct as putting her under an enormous weight of stress. This is amply borne out by much else that she says. On the facts in evidence that is predictable and, so far as the defendant is concerned, intended effect of the defendant's conduct. There is no medical evidence, and it could not as yet be said that the plaintiff is suffering from any physical or psychiatric illness. But there is, in my judgment, an obvious risk that the cumulative effect of continued and unrestrained further harassment such as she has undergone would cause such an illness. The law expects the ordinary person to bear the mishaps of life with fortitude and, as was put in a case cited by Lord Bridge in McLoughlin v. O'Brien, customary phlegm; but it does not expect ordinary young women to bear indefinitely such a campaign of persecution as that to which the defendant has subjected the plaintiff.
Therefore, in my judgment, on the facts of this case and in line with the law as laid down in Janvier v. Sweeney, the court is entitled to look at the defendant's conduct as a whole and restrain those aspects on a quia timet basis also of his campaign of harassment which cannot strictly be classified as threats.
We have also been referred to the unreported decision of this court in Pidduck v. Molloy decided on 2nd March 1992. That was a case in which Lord Donaldson M.R., in giving the leading judgment, with which Stocker and Farquharson L.JJ. agreed, said of the defendant's conduct, "No one denies that there was ample practical justification for the making of an order in the widest terms which the law permits". That observation is, in my judgment, equally applicable in the present case.
The actual issue in Pidduck v. Molloy was that it was argued for the appellant that injunctions which a judge had granted against him by way of replacement of earlier wider injunctions were still too wide. The replacement injunctions were:
"1. The defendant do not assault the petitioner;
2. The defendant do not speak to the plaintiff; and
3. The defendant do not visit or enter the curtilage of the plaintiff's home".
In relation to the attack on the second of these, Lord Donaldson said:-
"[Counsel] did submit that speaking to the plaintiff was not of itself a tort, nor was it of itself a crime, and in that he is quite correct. But it is the fact that the past conduct of the defendant has suggested that, if he does speak to her, it is usually for the purpose of intimidating, threatening or abusing her, all of which are capable of amounting to crimes or torts, and in the circumstances I would modify the second part of the injunction to read 'not to speak to the plaintiff in an intimidatory threatening or abusive manner'".
In Pidduck v. Molloy the plaintiff and the defendant had at one time cohabited, although the 1976 Act did not apply, and they had had a child. There was therefore a topic on which there might have been a need for him to speak to her. In the present case there is no such topic, and a modification of the injunction in Lord Donaldson's form would not, in my judgment, be adequate because the parts of his letters to her which are not directly intimidatory, threatening or abusive are concerned to press his unwanted suit on her as part of his campaign of harassment.
Subject to that comment, Pidduck v. Molloy is in point as a decision of this court that intimidating or abusive conduct by a man towards a woman can be restrained.
I come now to Patel v. Patel [1988] 2 F.L.R. 179 decided by a division of this court consisting of May L.J. and Waterhouse J. This was a dispute between a father-in-law, the plaintiff, and his son-in-law, the defendant. There had been an injunction against the defendant restraining him from assaulting, molesting, or otherwise interfering with the plaintiff or communicating with the plaintiff otherwise than through solicitors and from trespassing upon the plaintiff's property or from approaching within 50 yards of it. A judge had discharged that injunction and substituted an injunction to the effect that the defendant should not assault or molest the plaintiff or trespass on his property. The plaintiff appealed; apart from an issue as to costs, which is irrelevant to the present case, he sought (1) to reinstate the order restraining the defendant from approaching within 50 yards of the plaintiff's property and (2) to have a fine of £25 which the judge had imposed on the defendant for minor acts of molestation increased.
May L.J. rejected both grounds of appeal. As to (1) he said that unless an actual trespass was committed or was more than likely to be committed, it did not seem to him that merely to approach to within 50 yards of a person's house gave a cause of action which might be restrained by an injunction in those terms. As to (2) he drew attention to the very minor acts of molestation which the judge had found proved, and to the fact that many more serious allegations had not been accepted by the judge. That judgment of May L.J., while good warrant for Judge Stockdale's curtailment of the earlier injunction granted by the Barnet County Court in the present case, does not, in my judgment, affect the present appeal in the circumstances of the present case.
Waterhouse J. agreed with May L.J., and endorsed the approach adopted by the judge in reformulating the injunctions. He added, however:
"The essence of the appellant's complaint is that he has been the victim of repeated harassment since May 1985, but in the present state of the law there is no tort of harassment. The judge was right, in my judgment, in limiting the scope of the injunctions in the way that he did".
I find it difficult to give much weight to that general dictum that there is no tort of harassment, when the reformulated injunctions which Waterhouse J. approved included an injunction restraining the defendant from molesting the plaintiff.
I should next refer to the decision of Scott J. in Thomas v. National Union of Mineworkers [1986] Ch. 20, to which we were referred. That case arose out of the miners' strike of 1984. In the course of a fairly long and careful reserved judgment, Scott J. held that miners who wanted to return to work were entitled to use the public highway to enter the colliery where they worked without unreasonable harassment and in particular without having abuse shouted at them by some 50 to 70 striking miners who were picketing the colliery. The actions of the striking miners were therefore actionable in nuisance. The relevant part of the judgment of Scott J. was criticised in argument in the case of Newsgroup Ltd. v. SOGAT 82 [1987] I.C.R. 181, a case about another industrial dispute which came before Stuart-Smith J. The criticism, in which Stuart-Smith J. saw force - see page 206D-F - seems to have been to the effect that mere interference with a person's right to use the public highway could not per se be a new tort, when an action by an individual for obstruction of the public highway as a nuisance only lay on proof of special damage: see Clark and Lindsell, paragraph 24-68. I do not find it necessary for the determination of this appeal to examine the correctness of the decision of Scott J.
For reasons I have endeavoured to indicate, I regard the injunction granted by Judge Stockdale as a principle justified in law as an interlocutory injunction on the facts of this case as they were before him. I turn to consider the question of the choice of words, and the wording of any continuing injunction.
The word "molest" is well know to, and well understood by, lawyers in its context in section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 and, therefore, the enforcement of an injunction against "molestation" under that Act presents little difficulty. It was said by Ormrod L.J. in Horner v. Horner [1983] 4 F.L.R. 50 at page 51G that the word "molesting" in section 1 of the 1976 Act "does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court". In Johnson v. Walton [1990] 1 F.L.R. 350 Lord Donaldson M.R. held at page 352H, with the concurrence of the other members of the court, that the word "molestation" has that meaning whenever it is used, regardless of whether the particular proceedings are or are not brought under the 1976 Act.
It follows, in my judgment, that in the circumstances of the present case there could have been no objection if Judge Stockdale had granted an injunction to restrain the defendant from "molesting" the plaintiff.
There are, obviously, certain advantages from the point of view of enforcement proceedings, if an injunction is granted in terms which are well-known to lawyers and have, to lawyers, a well-understood meaning. On the other hand, Judge Stockdale could reasonably have thought that though the word "molesting" is well understood by lawyers, its full implications might not have been readily apparent to a person in the position of the defendant. It is desirable that an injunction should be expressed in words which the person restrained can readily understand, particularly if the person restrained is not present in court, with his or her legal advisers, at the time when the injunction was granted. Therefore Judge Stockdale was entitled, at his discretion, to drop the word "molesting" and express the injunction in the words he used, as being words which the defendant would be readily able to understand. On the facts of this case the alternative words he chose are appropriate; if they differ at all in their effect from the injunction against "molestation" I cannot regard the difference as so significant that it goes beyond the scope of any injunction which the judge had jurisdiction to grant.
Since, therefore, the choice of words was a matter of the judge's discretion, I would respect his choice without variation or qualification and consequently, for the reasons I have given, I would dismiss this appeal.
I have had the advantage of reading in draft the judgment of Peter Gibson J. I note that he would qualify the injunction by adding words such as "by doing acts calculated to cause the [plaintiff] harm".
I regard such a qualification as undesirable, because it would complicate enforcement of the injunction pending trial of the action; the defendant would assert that any act of pestering or harassment of which complaint was made was not by itself calculated to cause the plaintiff harm.
I also regard the qualification as unnecessary because (i) the campaign of harassment has to be regarded as a whole without consideration of each ingredient in isolation, and viewed as a whole it is plainly calculated to cause the plaintiff harm, and can be restrained quia timet because of the danger to her health from a continuation of the stress to which she has been subjected (ii) threats of violence can be restrained per se, whether or not the threat, without the subsequent violence, is calculated to cause the plaintiff harm and (iii) telephone harassment is, in my judgment, as indicated above, an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present, and thus, on the past history, can be restrained quia timet without further proof or damage.
LORD JUSTICE ROSE: I agree with the judgment of Dillon L.J.
MR. JUSTICE PETER GIBSON: When His Honour Judge Stockdale Q.C. on 10th July 1992 in the Barnet County Court granted an interlocutory injunction that the appellant "be forbidden from using violence, harassing, pestering or communicating with the respondent in any way" until trial or further order, there was ample evidence before him that the appellant had used violence against the respondent and had been harassing and pestering the respondent, in amongst other ways, by telephone calls and other communications with her. It is not disputed that part of the order which restrained the appellant from using violence was properly made. What is in dispute is whether there was jurisdiction to restrain the other conduct specified in the order.
This is not a case to which the Domestic Violence and Matrimonial Proceedings Act 1976 applies, the parties being neither married to nor cohabiting with each other, nor are there children to protect. Although there have been calls for the extension of the domestic violence legislation so that the wide remedies under it (including the grant of injunctions to restrain any form of molestation, the exclusion of a party from a home or from a specified area including the home and the attachment of a power of arrest to certain injunctions) would become available in proceedings between parties whose relationships are not limited by reference to marriage and cohabitation (see in particular the Law Commission's report on Domestic Violence and Occupation of the Family Home (1992) Law Com. No. 207), no such extension has yet been enacted; and even if the Law Commission's recommendations were implemented, a person in the respondent's position would probably still be unable to invoke such remedies. Such a person must therefore look to the common law in order to obtain protection.
The particulars of claim contain allegations of actual and threatened violence by the appellant against the respondent causing her "great fear and distress"; she is said to be "very scared and feels very frightened by the [appellant's] abnormal and irrational obsession", and his behaviour is said to have caused her "mental anguish". She seeks (inter alia) damages for assault, trespass (which in the circumstances pleaded must be trespass to the person) and nuisance. Further details supporting these allegations and containing other allegations of intimidatory behaviour by the appellant are contained in the affidavit evidence. The respondent is still only 18 and there is evidence that her life has been threatened on several occasions by the appellant who has written to her that his thoughts and actions are based on pure hatred and always have been. It is hardly surprising that she claims to be frightened and under stress.
The jurisdiction of the county court to grant an injunction is contained in section 38 of the County Courts Act 1984, which allows that court (subject to immaterial exceptions) to make any order, including an interlocutory order, which could be made by the High Court if the proceedings were in the High Court. By section 37 of the Supreme Court Act 1981 the High Court has power to grant an interlocutory or final injunction in all cases in which it appears to the court to be just and convenient to do so. But as Lord Diplock pointed out in The "Siskina" v. Distos Compania Naviera S.A. [1979] A.C. 210, at page 254, the interlocutory order must be made in an action claiming substantive relief which the court has jurisdiction to grant and to which the interlocutory order is but ancillary. Normally the interlocutory injunction will restrain conduct complained about which is made in the pleadings and relief in respect of which is sought in the action, but as the usual purpose of the interlocutory order is to preserve the position until the rights of the parties have been determined in the action, it can make whatever order best achieves that purpose even if that order would not be appropriate at the trial (Fresh Fruit Wales Ltd v. Halbert (The Times, January 29th 1991 (C.A.)).
While Mr. Turl appearing for the respondent relied on that authority in submitting that the learned judge had jurisdiction to make the order in the terms which he did, for my part I see no scope in the circumstances of this case for looking beyond the causes of action pleaded in the particulars of claim, amplified as they are by the affidavit evidence.
The correct approach in a case like this is, in my judgment, that adopted in this court in Burnett v. George, a case decided in 1986, but only recently reported in [1992] 1 F.L.R. 525. In that case the female plaintiff and the defendant, after living together for a period, parted in circumstances which left the defendant with a burning resentment against the plaintiff. She was subjected to assaults and molestation including telephone threats. She was granted an injunction restraining the defendant from assaulting, molesting or otherwise interfering with her. Sir John Arnold P., with whom Sir Roualeyn Cumming-Bruce agreed, said (at page 527):
"The foundation of the appeal is that the formula of it being just and convenient to grant injunctive relief in these circumstances, which is the statutory formula under which the High Court and the County both act, upon its proper interpretation requires justice to be in the form of an identifiable and protectable legal interest, and convenience to be something which is indicated by the circumstances of the case.
"There is much authority which supports that proposition. "It is said, and in my judgment said with some force, that molestation and interference are not, in the circumstances of this case, in which no question of matrimonial nexus arises and where there are no children to protect, actionable wrongs, and therefore it is not just to grant an injunction to restrain them".
For my part I regard that as a conclusive argument, unless there be evidence that the health of the plaintiff is being impaired by molestation or interference calculated to create such impairment, in which case relief would be granted by way of an injunction to the extent that it would be necessary to avoid that impairment of health. The exception is, in my judgment, validly grounded on Wilkinson v. Downton [1897] 2 QB 57 at first instance, which was adopted and confirmed in this court in Janvier v. Sweeney [1919] 2 K.B. 316.
However, in this case although there is evidence that the telephoned threats caused an impairment of the plaintiff's health, because she says in her affidavit "the defendant's continuous threats are having an adverse effect on my health", and it was the facts in the affidavit which were the foundation of the relief in this case, beyond that, the impairment of health is not supported by any evidence.
It seems to me that, against that background and in accordance with those principles, the generalised prohibition against molestation and interference goes too wide, but it is the duty of this court, under R.S.C. Order 59, rule 10(3), to substitute, for an order which is made too widely by the court appealed from, any order which ought to have been given or made. It is, in my judgment, therefore proper that this court, whilst disallowing the wider prohibition generally of molestation and interference, should substitute under that sub-rule a prohibition against the narrower form of wrong which is attested by the evidence as being one which involved the impairment of the plaintiff's health.
The order made by this court, as appears from the head-note, restrained the defendant from "assaulting molesting or otherwise interfering with the plaintiff by doing acts calculated to cause her harm".
In Pidduck v. Molloy a decision of this court given on 2nd March 1992 in another molestation case between parties not within the domestic violence legislation, an issue was whether an injunction restraining the defendant from speaking to the plaintiff was too wide. Lord Donaldson M.R. (with whom Stocker and Farquharson L.JJ. agreed) said (at page 6 of the transcript):
"[Counsel for the defendant] did submit that speaking to the plaintiff was not of itself a tort, nor was it of itself a crime, and in that he is quite correct. But it is the fact that the past conduct of the defendant has suggested that, if he does speak to her, it is usually for the purpose of intimidating, threatening or abusing her, all of which are capable of amounting to crimes or torts, and in the circumstances I would modify the second part of the injunction to read 'not to speak to the plaintiff in an intimidatory, threatening or abusive manner'".
That wording might suggest that it was proper to frame an injunction in terms which restrained conduct merely capable of amounting to a crime or a tort rather than limiting the restrained conduct to that which amounted to a crime or a tort. In so far as this differs from the approach taken in Burnett v. George (to which no reference is made in the judgments), I prefer that in Burnett v. George because in principle only conduct amounting to an actionable wrong (including conduct facilitating such a wrong) should be restrained.
Miss Harry Thomas appearing for the appellant criticised the inclusion in the order of a restraint against harassment or pestering because that afforded the plaintiff far more protection than she was entitled to. She submitted that there was no tort of harassment or pestering, though she accepted that some acts of harassment may constitute an assault or threatened assault; but she submitted that threatening would not alone constitute an assault. Mr. Turl contended that the law of tort had developed and that thee now was a tort of unreasonable harassment. For this he relied on Thomas v. National Union of Mineworkers (South Wales Area) & Ors. [1986] Ch. 20. In that case some working miners sought injunctions restraining the union which had called a miners' strike, from organising unlawful picketing or demonstrations. Scott J. said at page 64:
"The working miners are entitled to use the highway for the purposes of entering and leaving their respective places of work. In the exercise of that right they are at present having to suffer the presence and behaviour of the pickets and demonstrators. The law has long recognised that unreasonable interference with the rights of others is actionable in tort. The law of nuisance is a classic example and was classically described by Lindley M.R. in J. Lyons & Sons v. Wilkins [1899] 1 Ch 255 at 267. ... It is, however, not every act of interference with the enjoyment by an individual of his property rights that will be actionable in nuisance. The law must strike a balance between conflicting rights and interests. The point is made in Clerk & Lindsell, 15th Edition, paragraph 23-01:
'a variety of different things may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend upon a variety of considerations and a balancing of conflicting interests'.
Nuisance is strictly concerned with, and may be regarded as confined to, activity which unduly interferes with the use or enjoyment of land or of easements. But there is no reason why the law should not protect on a similar basis the enjoyment of other rights. All citizens have the right to use the public highway. Suppose an individual was persistently to follow another on a public highway, making rude gestures or remarks in order to annoy or vex. If continuance of such conduct were threatened, no one can doubt but that a civil court would, at the suit of the victim, restrain by an injunction the continuance of the conduct. The tort might be described as a species of private nuisance, namely unreasonable interference with the victim's rights to use the highway. But the label for the tort does not, in my view, matter.
In the present case, the working miners have the right to use the highway for the purpose of going to work. They are, in my judgment, entitled under the general law to exercise that right without unreasonable harassment by others. Unreasonable harassment of them in their exercise of that right would, in my judgment, be tortious. A decision whether in this, or in any similar case, the presence or conduct of pickets represents a tortious interference with the rights of those who wish to go to work to do so without harassment must depend on the particular circumstances of the particular case. The balance to which I have earlier referred must be struck between the rights of those going to work and the rights of the pickets".
In News Group Ltd. v. SOGAT '82 (No.2) [1987] I.C.R. 181 at page 206 Stuart-Smith J. (as he then was) after citing these passages from Scott J.'s judgment, referred to submissions made to him that Scott J. should not have invented a new tort and that it is not sufficient to found liability that there has been a reasonable interference with the rights of others, even though when a balance is struck between conflicting rights and interests the scale comes down in favour of the plaintiffs, unless those rights are recognised by the law and fall within some accepted head of tort. He expressed the view that there was force in those criticisms, but found it not necessary to express a final view on the question of harassment.
For my part, to the extent that Scott J. was holding that there is now a tort of unreasonable harassment, with all respect to him, I cannot agree with him. There is no tort of harassment (Patel v. Patel [1988] 2 F.L.R. 179, at page 182 per Waterhouse J.) and I do not think that the addition of the adjective "unreasonable" would convert harassing conduct into tortious conduct. Patel v. Patel was another case brought in tort between parties not falling within the domestic violence legislation. This court upheld that part of the order of the county court judge by which he had prohibited the defendant from assaulting or molesting the plaintiff or trespassing on his property but without any discussion of why molestation was a tort, nor how harassment differed from molestation. There is no doubt that many forms of molestation, in the wide sense in which it has been interpreted by the courts (see, for example, Horner v. Horner [1982] Fam. 90), are tortious, but in my view not every form of molestation is a tort. Again, in so far as Patel v. Patel is inconsistent with Burnett v. George, in which molestation per se was held not to be an actionable wrong, I prefer Burnett v. George.
However, Scott J.'s remarks were made in the context of the harassment of the lawful user of a highway to go to work. Thus he said at page 65:
"[the working miners] can only complain of picketing or demonstrations which unreasonably harass them in their entry into and egress from their place of work".
It may be arguable that workers have an interest in having access to their place of work analogous to the interests of those occupying business premises or that harassment of the user of a highway is a tort (see Clerk and Lindsell on Torts (1989) 16th Edition, paragraph 24-68); but even if such argument were correct, it would not avail the respondent on the facts of this case, and it is not necessary to decide the point.
Mr. Turl submitted that the respondent has a right of privacy with which the appellant was unreasonably interfering. But that argument is not open to him in the light of the decision of this court in Kaye v. Robertson [1991] 18 F.S.R. 62, confirming that English law has recognised no such right.
He further submitted that the respondent had a sustainable claim in private nuisance. As Miss Harry Thomas pointed out, private nuisance is usually defined as an act or omission which is an interference with, disturbance or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land (see for example Clerk v. Lindsell op. cit. 24-01). It appears from the decision of this court in Malone v. Lasky [1907] K.B. 141 that not every occupation of land is sufficient. In that case the wife of the manager of a company to which premises were sub-let was resident at the premises with her husband. She was injured at the premises by an object falling on her as a result of the vibration of an engine in adjoining property and claimed in nuisance. Her claim failed because she had no interest in the premises which she occupied and, per Sir Gorell Barns P., described as "no rights of occupation in the proper sense". Similarly in Nunn v. Parkes (1924) 158 L.T. Jo. 431 the Divisional Court of the King's Bench Division held that the husband of the owner of land could not sue in private nuisance when the garden was flooded and damage was caused to his chattels as a result of acts by the defendant on adjoining land. The general rule of law was applied that only an owner or occupier of the property affected can maintain an action for private nuisance, and the husband was merely a licensee of the owner. In Metropolitan Property v. Jones [1939] 2 All E.R. 202, at page 205 Goddard L.J. (sitting as an additional judge in the King's Bench Division) said:
"I am bound by Malone v. Lasky in which the Court of Appeal appear to me to have laid down in terms that, unless the plaintiff in an action for nuisance has legal interest in the land which is alleged to be affected by the nuisance, he has no cause for action".
That appears to put the matter too narrowly, as a person in de facto possession of land (Foster v. Warblington U.D.C. [1906] 1 KB 648) as well as a licensee with an exclusive right to possess land (Newcastle-under-Lyme Corporation v. Wolstanton Ltd. [1942] Ch. 92) may sue in nuisance. However, subject to Scott J.'s obiter comments, which I have cited, on harassment of the user of the highway constituting a species of private nuisance, I know of no authority which would allow a person with no interest in land or right to occupy land to sue in private nuisance. Given that the purpose of an action in nuisance is to protect the right to use and enjoyment of land (see Salmond and Heuston on the Law of Torts (1992) 20th Edition, 67), it seems to me to be wrong in principle if a mere licensee or someone without such right could sue in private nuisance.
Mr. Turl, however, relied on the decision of the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell [1976] 73 D.L.R. (3d) 62. In that case the defendant continually harassed the plaintiff, her brother, sister-in-law and father, by telephone and letter. The court held first that the brother and the father had a claim in nuisance by invasion of privacy in their house through abuse of telephone communications. The court "inferred" (see page 77) that the brother was the owner of the premises he occupied with his wife and, whilst the report is silent as to the father's interest in the property he occupied as his home, it may be that a similar inference was made. Although the court referred to the invasion of privacy as the nuisance, the ratio of that part of the decision was that the persistent telephone calls to those plaintiffs' homes amounted to undue interference with the comfortable and convenient enjoyment of their respective premises. That part of the decision was therefore in conformity with the conventional approach in the law of nuisance. The court then turned to the question whether the sister-in-law had a right of action in nuisance. The court referred to but plainly disliked Malone v. Lasky, and held that the sister-in-law, harassed as she was in the matrimonial home, with a right to live there with her husband, had sufficient occupancy of the house to be entitled to the same relief. But that decision does not cover the position of a person like the respondent who has no such right of occupation. I am therefore unable to find that an injunction in the present case can be properly based on private nuisance.
Mr. Turl also relies on the principle in Wilkinson v. Downton [1897] 2 QB 57, to which Sir John Arnold P. referred in the passage which I have cited from Burnett v. George. Miss Harry Thomas accepts that injunctive relief may be available where a person intentionally does an act which is calculated to cause the victim to suffer actual physical harm and does in fact impair that person's health. But she says that the principle does not apply because such a cause of action was not pleaded and there is insufficient evidence that the appellant's actions impaired the respondent's health. But in my judgment the allegations in the particulars of claim and the affidavit evidence to which I have referred show a serious risk to her health and so allow such a claim to be made and, in all the circumstances, an injunction to restrain conduct which it is reasonable to apprehend would, if unrestrained, continue and impair the respondent's health is amply justified. Accordingly, whilst I accept that an injunction against harassing and pestering is too wide, because not limited to an actionable wrong, in my judgment the court has jurisdiction to grant such an injunction if limited by words such as were used in Burnett v. George, viz. "by doing acts calculated to cause the respondent harm".
Miss Harry Thomas submitted that it was inappropriate to use the words "harassment" and "pestering" in common law injunctions because they were not certain enough. I accept that an injunction restraining conduct should be sufficiently specific so that the person to whom it is directed knows what he must stop doing. But it must also be general enough to cover other objectionable behaviour so as to prevent easy evasion of the order. There are advantages in framing the injunction in what might be called traditional domestic violence form to restrain "assaulting, molesting or otherwise interfering with" the complainant because the legal advisers, if not the person restrained, will be familiar with such language and the way it has been interpreted by the courts. But I cannot say that the words "harassing" and "pestering" are too uncertain to be included in an injunction.
Miss Harry Thomas also criticised the inclusion of "communicating with" the respondent as that might include non-tortious conduct. In the circumstances of the present case, where any communication with the respondent by the appellant is likely to add to her distress, that criticism might be thought more theoretical than real, but I accept that in principle here too it is appropriate to limit the restrained conduct to an actionable wrong by applying some such coda as I have suggested above to this conduct.
To the limited extent, therefore, that I would qualify the conduct restrained by the addition of a coda to limit that conduct to actionable wrongs, I would allow the appeal.
Order: Appeal dismissed, with costs not to be enforced without the leave of the court; legal aid taxation for both parties; leave to appeal to House of Lords refused.
