Khorasandjian v Bush

The court had jurisdiction to grant an interlocutory injunction restraining a defendant from harassing, pestering or communicating with a plaintiff, by any means including telephone calls to her at her parents' home.

The Court of Appeal so held in a reserved judgment in dismissing an appeal by the defendant, Gary Bush, of Petworth Road, Muswell Hill, London, from an interlocutory order of Judge Stockdale in Barnet County Court, granting an application by the plaintiff, Claire Elliott Khorasandjian, of Halliwick Road, Muswell Hill.

Miss Caroline Harry Thomas for the defendant; Mr Philip Turl for the plaintiff.

LORD JUSTICE DILLON said that the judge ordered on July 10, 1992 that the defendant be forbidden from using violence to, harassing, pestering or communicating with the plaintiff in any way until the trial of the action or further order.

The matter had come before the judge on an application by the plaintiff to commit the defendant to prison for breach of an earlier injunction which restrained the defendant until trial or further order from (i) molesting, harassing or otherwise interfering with the plaintiff and (ii) entering or coming within 200 yards of the home of the plaintiff's parents or any other address at which the plaintiff might reside.

The judge refused to commit the defendant but granted the new injunction in place of the earlier injuctions. The substantive point of the appeal was that it was said for the defendant that the judge 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.

It was accepted, however, 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 was a recognised tort.

The defendant, aged 23, and the plaintiff, aged 18, were not married to each other and had never cohabited with each other. Thus there was no jurisdiction to grant an injunction against "molestation" under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976.

The power of the county courts to grant injunctions in cases where the county court had jurisdiction was the same as the power of the High Court. The statutory authority was now section 37(1) of the Supreme Court Act 1981, which provided that the High Court might by order grant an injunction "in all cases in which it appears to the court to be just and convenient to do so".

It was well understood, however, despite the apparent width of those words, that, as Lord Diplock had put it in relation to the predecessor of section 37(1) in The SiskinaELR ([1979] AC 210, 245): "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 was necessary to consider what claims for substantive relief, or causes of action, the plaintiff had against the defendant.

The plaintiff and the defendant first met in 1990 at a snooker club. In about August 1991 the defendant underwent psychotherapy, following suicide attempts. The friendship later broke down. The defendant said that the plaintiff did not want anything to do with him. He could not accept that.

As a result of threats and abusive behaviour to the plaintiff he was arrested by the police in March 1992 and the magistrates gave him a 12-month conditional discharge. He was also, inter alia, subsequently sent to prison until June for other threats to the plaintiff.

The plaintiff's case was that the aggressive behaviour, pestering and harassment on the part of the defendant had continued with persecution by telephone calls. That conduct had been directed not only against the plaintiff, but also against her mother, current boy friend and the boy friend's mother.

Miss Harry Thomas conceded that if the plaintiff's mother had a freehold or leasehold interest in the parental home, she could complain of persistent or unwanted telephone calls made by the defendant, as that would fall within the tort of private nuisance.

But, she submitted, in reliance on Malone v LaskeyELR ([1907] 2 KB 141) that the basis of the tort was interference with the enjoyment of a person's property and, therefore, the plaintiff, as, in law, a mere licensee in her mother's property with no proprietary interest, could not invoke the tort of private nuisance or complain of unwanted and harassing telephone calls made to her in her mother's home.

To his Lordship's mind, it would be ridiculous if, in the 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 leasehold proprietary interest in the premises in which he or she received the calls.

Miss Harry Thomas submitted, however, that English law did not recognise any tort of harassment or invasion of privacy or, save in the different context of such a case as Rookes v BarnardELR ([1964]) AC 1129), intimidation.

Therefore, she said that, save as she had expressly conceded, the defendant's conduct, even on the plaintiff's version of it, was, under the English civil law, legitimate conduct of which the plaintiff had no power or right to complain.

That a legal owner of property could obtain an injunction, on the ground 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 MotherwellUNK ([1976] 73 DLR (3d) 62). There, notwithstanding Malone v Laskey, the court also held that the wife of the owner had the right to restrain harassing telephone calls to the matrimonial home.

Their Lordships were entitled to adopt the same approach. The court had at times to reconsider earlier decisions in the light of changed social conditions. If the wife of the owner was entitled to sue in respect

harassing telephone calls, then there was no reason why that should not also apply to a child living at home with her parents.

The injunction granted by Judge Stockdale was in principle justified as an interlocutory injunction on the facts as they were before him.

As to the wording of the injunction, there could have been no objection if the judge had granted an injunction to restrain the defendant "molesting" the plaintiff. Since the choice of words was a matter of the judge's discretion, his Lordship would respect his choice without variation or qualification.

Lord Justice Rose agreed and Mr Justice Peter Gibson delivered a dissenting judgment.