The Court of Appeal (Mr Justice Peter Gibson dissenting) dismissed an appeal by the defendant, Gary Bush, from an interlocutory order by Judge Stockdale forbidding the defendant from using violence to, harassing, pestering or communicating with the plaintiff, Claire Elliott Khorasandjian, in any way until trial or further order.
The plaintiff, aged 18, and the defendant, aged 23, were not married and had never cohabited with each other. They became friends in 1990 but the friendship broke down. The plaintiff, who lived with her parents, complained that the defendant had assaulted her, threatened her with violence, behaved aggressively, shouted abuse and pestered her with telephone calls to her at her parents' home.
The defendant had been given a conditional discharge and a prison sentence for his threatening and abusive behaviour. He had been fined for offences relating to the telephone calls.
On an application to commit the defendant from breach of an injunction restraining the defendant from 'molesting, harassing or otherwise intefering with' the plaintiff, Judge Stockdale changed the injunction to restrain the defendant from 'using violence to, harassing, pestering or communicating with' the plainfiff.
The defendant appealed against the order on the ground that the words 'harassing, pestering or communicating with' with the plaintiff did not reflect any tort known to law and an interlocutory injunction could only be granted to protect a legal right of the plaintiff.
Caroline Harry Thomas (Cordell Tibber & Co) for the defendant; Philip Turl (G Dubow) for the plaintiff.
LORD JUSTICE DILLON said that there was no jurisdiction to grant an injunction against 'molestation' under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. It was necessary to consider what claims for substantive relief or causes of action the plaintiff had against the defendant.
The defendant conceded that an injunction could be granted to restrain the defendant from assaulting or threatening to assault the plaintiff or to restrain the defendant from interfering with the plaintiff's property. However it was submitted that the basis of the law of the tort of private nuisance was interference with the enjoyment of a persons' property, and therefore the plaintiff, as a mere licensee in her mother's property, could not complain of unwanted and harassing telephone calls to her in her mother's home.
It was ridiculous if in this present age the law was that the making of deliberately harassing and pestering telephone calls to a person was only actionable in the civil courts if the recipient of the calls happened to have the freehold or a leasehold proprietary interest in the premises in which he or she received the calls.
In Motherwell v Motherwell (1976) 73 DLR (3d) 62 the appellate division of the Alberta Supreme Court decided that, notwithstanding Malone v Laskey (1907) 2 KB 141, the wife of the owner had the right to restrain harassing telephone calls to the matrimonial home. If the wife of the owner was entitled to sue in respect of harrassing telephone calls, then that also applied to a child living at home with her parents.
Burnett v George (1992) 1 FLR 525 decided 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, in which case the relief should be granted to the extent necessary to avoid the impairment of health. That decision did not preclude the Court of Appeal 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 in Burnett v George.
Janvier v Sweeney (1919) 2 KB 316 was authority that verbal threats made orally were actionable if they caused illness. Here there were threats to assault which could be restrained. The law expected the ordinary person to bear the mishaps of life with fortitude and customary phlegm, but it did not expect ordinary young women to bear indefinitely such a campaign of persecution as that to which the defendant had subjected the plaintiff.
The court was entitled to look at the defendant's conduct as a whole and restrain those aspects of his campaign of harassment which could not strictly be classified as threats. The injunction was in principle justified in law as an interlocutory injunction on the facts of the case.
It was desirable that an injunction should be expressed in words which the person restrained could readily understand, particularly if the person was not present in court with his or her legal advisers when the injunction was granted.
Therefore, Judge Stockdale was entitled to drop the word 'molesting' and express the injunction in words which the defendant would be readily able to understand and the alternative words were appropriate.
LORD JUSTICE ROSE agreed.
MR JUSTICE PETER
GIBSON, dissenting, said that an injunction against harassing and pestering was too wide because it was not limited to an actionable wrong, but the court had jurisdiction to grant such an injunction if limited by words such as 'by doing acts calculated to cause the plaintiff harm'.
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