Khoransandjian v Bush [1993] EWCA Civ 18

A young woman received persistent, unwanted telephone calls from a former friend. She successfully obtained an injunction to stop the harassment, even though she had no proprietary interest in the property. The case extended the tort of private nuisance to protect individuals.

Facts

The plaintiff, Miss Natasha Khorasandjian, an 18-year-old woman, was subjected to a campaign of harassment by the defendant, Mr Martin Bush, a 29-year-old man. They had been friends, but after their friendship ended, the defendant developed an obsession with the plaintiff. The harassment included threats of violence, unwanted visits, and persistent, menacing telephone calls to her parents’ home where she lived and her grandmother’s home. The defendant had a history of violence and had been imprisoned for threatening to kill the plaintiff. The plaintiff, who was a mere licensee with no proprietary interest in the properties, sought an interlocutory injunction to restrain the defendant from harassing, pestering, or communicating with her.

Issues

The central legal issue was whether the court had jurisdiction to grant an injunction to restrain harassing telephone calls where the conduct did not fall into any established tort against the plaintiff. Specifically, could the tort of private nuisance be extended to protect a person who had no proprietary or possessory interest in the land affected by the nuisance (in this case, the harassing phone calls)? The defendant argued, based on the authority of Malone v Metropolitan Police Commissioner, that there was no tort of harassment and that a claim in private nuisance required an interest in land, which the plaintiff lacked.

Judgment

The Court of Appeal, by a majority, allowed the appeal and granted the injunction.

Lord Justice Dillon (Majority)

Lord Justice Dillon, giving the leading judgment, acknowledged the traditional limitations of private nuisance but argued for the evolution of the common law to address modern problems. He distinguished the present case from Malone, which concerned telephone tapping and confidentiality, not harassment. He held that the defendant’s persistent and unwanted telephone calls were an actionable interference with the plaintiff’s ordinary and reasonable use and enjoyment of property. Crucially, he dispensed with the requirement for the plaintiff to have a proprietary interest in the property where she received the 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.

He concluded that the court had a jurisdiction to grant an injunction against this conduct as an actionable private nuisance and that it was appropriate to do so. He famously stated, "The court has at times to choose between marking time and keeping up with the times."

Lord Justice Rose (Majority)

Lord Justice Rose delivered a short judgment concurring with Lord Justice Dillon. He agreed that there was jurisdiction to grant the injunction sought and that it should be granted to restrain the defendant from harassing, pestering, or communicating with the plaintiff.

Lord Justice Peter Gibson (Dissenting)

Lord Justice Peter Gibson dissented. He maintained that the court was bound by precedent, particularly Malone v Metropolitan Police Commissioner and Patel v Patel, which established that private nuisance required an interest in land and that there was no general tort of harassment in English law. He believed that creating such a remedy was a matter for Parliament, not the courts.

For my part I find it difficult to see how a daughter, living with her parents in their home, can be said to have any such right to enjoyment of land as to be entitled to sue in private nuisance. She is in the same position as a lodger or a guest. In my judgment the court is not free to extend the tort of private nuisance in the way that my Lord, Dillon L.J., has suggested.

Implications

The decision was highly significant as it demonstrated a willingness by the judiciary to adapt the common law to provide a remedy against harassment, effectively creating what was seen as a new ‘tort of harassment’ under the guise of private nuisance. It controversially did away with the long-standing requirement of a proprietary interest for a claim in nuisance. However, this liberal approach was short-lived. The House of Lords later overruled Khorasandjian in Hunter v Canary Wharf Ltd [1997], restoring the traditional requirement for a proprietary interest in nuisance claims. Despite this, the case was instrumental in highlighting a significant gap in the law, which was subsequently filled by Parliament through the enactment of the Protection from Harassment Act 1997, which provides specific civil and criminal remedies for harassment irrespective of any property interest.

Verdict: The appeal was allowed and an injunction was granted against the defendant to restrain him from using violence to, harassing, pestering or communicating with the plaintiff.

Source: Khoransandjian v Bush [1993] EWCA Civ 18