Khorasandjian v Bush [1993] EWCA Civ 18

A young woman sought an injunction against a former friend who persistently harassed her through telephone calls, threats, and pestering behaviour. The Court of Appeal upheld the injunction, extending the tort of private nuisance to protect a person lawfully present in property from harassing telephone calls, regardless of proprietary interest.

Facts

The plaintiff (aged 18) and defendant (aged 23) had been friends but the friendship broke down. The defendant refused to accept this and subjected the plaintiff to a sustained campaign of harassment including assaults, threats of violence, abusive behaviour, persistent unwanted telephone calls to her parents’ home, and stealing her handbag. The defendant had been arrested, given a conditional discharge, imprisoned for threatening to kill the plaintiff, and fined for offences under the Telecommunications Act 1984. The plaintiff lived at her parents’ home as a licensee without any proprietary interest in the property.

Issues

Primary Legal Issues

1. Whether the court had jurisdiction to grant an injunction restraining harassment, pestering, and communication where the plaintiff had no proprietary interest in the property where she received harassing telephone calls.

2. Whether there exists a tort of harassment in English law.

3. Whether the principle from Malone v Lasky (requiring a proprietary interest to sue in private nuisance) precluded the plaintiff from obtaining relief.

Judgment

The Court of Appeal (Dillon LJ and Rose LJ, Peter Gibson J dissenting in part) dismissed the appeal and upheld the injunction.

Dillon LJ held that the tort of private nuisance could be extended to protect persons lawfully present in property from harassing telephone calls:

“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.”

Adopting the Canadian decision in Motherwell v Motherwell, Dillon LJ stated:

“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.”

The court also relied on Wilkinson v Downton and Janvier v Sweeney, recognising that conduct calculated to cause physical injury or illness through nervous shock was actionable. Dillon LJ concluded that the cumulative effect of continued harassment created an obvious risk of causing psychiatric illness, justifying quia timet relief.

Peter Gibson J, while agreeing the injunction was broadly justified, would have qualified it by adding words such as “by doing acts calculated to cause the plaintiff harm” to limit the restrained conduct to actionable wrongs.

Implications

This case significantly extended the scope of private nuisance by allowing persons without proprietary interests in land to claim protection from harassment. It demonstrated judicial willingness to develop the common law to address modern forms of harassment, particularly telephone harassment. However, the decision was later overruled by the House of Lords in Hunter v Canary Wharf Ltd [1997] on the point regarding standing in private nuisance, though statutory protection was subsequently provided by the Protection from Harassment Act 1997.

Verdict: Appeal dismissed. The interlocutory injunction restraining the defendant from using violence to, harassing, pestering or communicating with the plaintiff was upheld.

Source: Khorasandjian v Bush [1993] EWCA Civ 18