A Development in the Tort of Private Nuisance

Transcription

1 March Corporate Fraud cases) the SFO is able to make use of civil disclosures as evidence. This strategy, however, has its drawbacks. It presupposes that an incriminating civil investigation will have been completed before criminal proceedings are initiated. It may also have the effect of unduly prolonging the criminal in~estigation.~ Given the protracted nature of SFO inquiries, the logic of the present strategy appears open to question. If the SFO is empowered to use enforced civil disclosures as evidence, does it make sense to preclude the equivalent use of section 2(2) statements? The difficulty arises from the fact that the section 2(2) powers, as made clear in SFO v Smith,38 may be exercised where the person concerned has been charged with offences. Once the prosecution process is under way, it might seem unfair and oppressive to require persons facing trial to make incriminating statements which could be used as evidence. In the present cases, the Court of Appeal was at pains to emphasise that the use of the enforced civil disclosures did not involve any element of compulsory incrimination after charge. The Royal Commission, it may be noted, concluded that the SFO s existing powers had proved effective and that the section 2(8) restriction should remain.39 Perhaps the Royal Commission was wise to urge caution. Any extension of the SFO s powers, which permitted incriminating statements obtained during post-charge questioning to be used as evidence, would probably infringe the right to a fair trial under Article 6 of the European Convention on Human Rights.40 A Development in the Tort of Private Nuisance Elizabeth Cooke * Background: The Gap in Domestic Violence Law It is well known that where violence or harassment occurs between persons who are neither married nor living with each other in the same household as husband and wife the protection of legislation specifically tailored to domestic violence is not available. This is so even if the parties are in a close relationship such as mother and son, a gay couple, or a man and woman who have had a sexual 37 The difficulty arises where incriminating s 2(2) statements are made at early stages of SFO investigations and the SFO has to rely on pending civil investigations to produce incriminating disclosures as evidence. Criminal charges may have to await the completion of the civil investigations. 38 See n See Report of Royal Commission, ch 4, para 29 (p 56). 40 In Funke v France [ CMLR 897, the European Court referred in the context of Article 6 to the right of anyone charged with a criminal offence to remain silent and not to contribute to incriminating himself. The case concerned a conviction for not disclosing potentially incriminating bank statements to customs officials, who were investigating F for alleged tax offences. The decision that Article 6 had been infringed may seem surprising, since (1) F was not being required to incriminate himself in respect of the offence charged, viz the non-disclosure of the documents, (2) the issue of selfincrimination related to the alleged tax offences in respect of which F was never formally charged. Does this decision have implications for the SFO s exisring powers under s 2(2)? *Lecturer in Law, University of Reading. 1 should like to thank my colleague David Wilde for his helpful comments on an earlier draft on this note. 1 Domestic Violence and Matrimonial Proceedings Act 1976, s l(2). 0 The Modern Law Review Limited

2 ~ The Modem Law Review [Vol. 57 relationship but have not lived together. Such persons must instead, if they wish to take civil proceedings, seek an injunction in tort. However, conduct which might be described as pestering or harassment and which is readily recognised as molestation * for the purposes of the Domestic Violence and Matrimonial Proceedings Act 1976 is not necessarily tortious. In the present state of the law there is no tort of hara~sment ~; equally, there is no tort of invasion of pri~acy.~ There is thus a lacuna in the law. Behaviour which is harmless in itself - unwanted letters or telephone calls, an ex-boyfriend hanging about in the street outside the house - may be distressing and damaging because of a relationship, or a past relationship, with the culprit. Yet the victim may have no civil remedy. The Report of the Committee on Privacy and Related Matters5 rejected arguments for the introduction by statute of torts of harassment or of invasion of privacy as solutions to the problem of press harassment. The Review of Press Sev- Regulation6 has now recommended that the government re-examine the position and, as a result, the Lord Chancellor s Department in July 1993 issued a consultation paper on Infringement of Privacy. The paper proposes the creation of a new statutory tort of infringement of privacy which, although introduced as a result of concern about the activities of the press, would be a general civil wrong encompassing domestic situations as well. However, the proposed new tort would seem to be of little use in a domestic context since legal aid would not be available, and since the procedure envisaged is not suitable for a situation where what is needed is the emergency protection of an inj~nction.~ The problem would be solved for certain categories of people in a range of family relationships by the implementation of the reforms recently proposed by the Law Commission, in its report Domestic Violence and the Occupation of the Family Home 8; they would all be treated on the same basis in a statute providing a new, unified system for civil remedies for this sort of violence and mole~tation.~ However, the categories proposed by the Law Commission are not all-embracing ; a couple who had had a close but non-sexual relationship, for example, would not be included. lo Meanwhile, there have been developments in the law of tort, in the area of trespass to the person. It has been suggested that there is now a tort of personal injury by molestation where the defendant has interfered with the plaintiffs right 2 Molestation in the context of s 1 of the 1976 Act applies to any conduct which can properly be described as such a degree of harassment as to call for the intervention of the Court, per Omrod LJ in Homer v Homer [1983] 4 FLR 50, at 51G. 3 Parel v Pate1 [1988] 2 FLR 179 per Waterhouse J, at 182. Thus, an injunction restraining the defendant from approaching within 50 yards of his father-in-law s house was discharged. By contrast, there is no difficulty in making such an order under the Domestic Violence and Matrimonial Proceedings Act 1976, s I(l)(c). 4 See, for example, Kaye v Robertson [1991] 18 FSR (1990) Cm (1993) Cm See paras 6.21 and 6.27 of the Consultation Paper. If, as is suggested later in this note, the gap in the law could be filled by legislation, such legislation will have to be specifically designed for that 8 purpose; a solution is unlikely to appear as a by-product of a statute aimed at something quite different. Law Commission Report No 207. The family connections covered include former cohabitants, engaged or formerly engaged couples, couples in a sexual relationship and people sharing a household on a non-commercial basis. 9 For a helpful summary of the proposals, see [ Fam Law See the seven categories listed at para 3.26 of the Report. I I By Fricker (19921 Fam Law 158, and Brazier [I9921 Fam Law The Modern b w Review Lim~ted 1994

3 March Private Nuisance to personal safety by doing acts calculated to cause harm to the plaintiff. That harm can include impairment of mental health or nervous shock. Thus in Burnett v George, * where the plaintiff had been subjected to assault, unwelcome visits and unwanted telephone calls, the defendant was restrained not only from entering her property but also from assaulting, molesting or otherwise interfering with the plaintiff by doing acts calculated to cause her harm. Similarly, in Pidduck v M~lloy, ~ the defendant was forbidden to speak to the plaintiff in an intimidatory, threatening or abusive manner. This is not a tort of harassment; it is narrower, involving the intended or likely impairment of the victim s health. Its roots lie in Wilkinson v Downton14 and Junvier v Sweeney,lS where it was established that lies or threats which the speaker knows are likely to cause physical injury, including injury through shock, are actionable. In the decision of the Court of Appeal (Peter Gibson J, as he then was, dissenting) in Khorusundjian v Bush,16 we see a further development involving the tort of nuisance. The Facts and Decision in Khorasandjian v Bush Miss Khorasandjian was 18 years old and lived with her parents. She had been persecuted for many months by Mr Bush, formerly a close friend, by persistent telephone calls, not only to her, but also to her mother and current b~yfriend. ~ She and Mr Bush had never lived together, so she sought an injunction in tort. An order was made that he be restrained from using violence to, harassing, pestering or communicating with the plaintiff in any way. Mr Bush appealed on the ground that his actions did not constitute a tort. He conceded that the plaintiffs mother could have sued in respect of the telephone calls, in nuisance, if she had a freehold or leasehold interest in the family home. But he argued that Miss Khorasandjian could not do so as she was only a licensee there. Nevertheless, in the Court of Appeal Dillon LJ, with whom Rose LJ agreed, held that the defendant s conduct amounted to a nuisance. He rejected a submission that Miss Khorasandjian could not sue because she did not have an interest in land; he considered that the requirement of damage was met by the inconvenience and annoyance to the occupier by such calls, and the interference thereby with the ordinary and reasonable use of the property. The decision is a welcome one insofar as it gave much-needed protection to a victim of intolerable conduct. However, it is suggested that the approach in the case to the tort of nuisance, arising from the need to provide that protection in the absence of a remedy under domestic violence legislation, is disturbing. 12 [I FLR 525 (CA, 1986). 13 [1992] 2 FLR [I QB [I KB [1993] 3 WLR Mr Bush had served a short prison sentence during 1992 for threatening to kill Miss Khorasandjian, and had been fined later that year for offences under s 43( l)(b) of the Telecommunications Act 1984 for making calls for the purpose of causing annoyance, inconvenience or needless anxiety to others. However, it seems that later his conduct fell short of being criminal, so that the victim was left to seek her own remedy in the civil courts. 0 The Modern Law Review Limited

4 The Modern Law Review [Vol. 57 The Right to Sue in Nuisance The decision in Khorusundjiun v Bush is a startling one, standing with Thomas v National Union ofmineworkers18 in giving a plaintiff a cause of action in spite of the principle that to sue in nuisance one must have an interest in land.19 Dillon W, in his judgment, noted the historical development of private nuisance as an action to protect private property. He quoted Clerk & Lindsell on Tortszo: the essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. However, he drew support from the decision of the Appellate Division of the Supreme Court of Alberta in Motherwell v Motherwell.21 In Motherwell, the defendant had persecuted her father, her brother and her brother s wife by letters and telephone calls. The sister-in-law had no proprietary interest in the family home, and yet sought and obtained an injunction in her own right rather than relying upon the protection she would have had from the injunction sought by her husband. The defendant, on appeal, therefore relied, as did the appellant in Khorusundjiun, on Mulone v Laskey,2z where a licensee was not permitted to recover in nuisance when a boiler fell on and injured her as a result of vibration from neighbouring premises. The plaintiff was the wife of the manager of the premises who lived there as licensee of the tenant. Clement JA, giving the judgment of the court in Motherwell, pointed out that the plaintiffs husband in Mulone v Laskey was a licensee and so could not himself have sued in nuisance; he suggested that the wife might well have succeeded had her husband been a tenant. He disagreed with the decision in Cunurd v Antifyre Ltd,z3 where the wife of a tenant was held to be unable to recover in nuisance. Having referred to Foster v Wurblington Urban Council,24 where a plaintiff successfully sued in nuisance for interference with oyster ponds on the foreshore which he had used for many years, and where it was said obiter that he would have succeeded even without any legal title to the land, Clement JA concluded that there was a distinction to be drawn between one who is merely present and occupancy of a substantial nature. In Motherwell, the wife had a status, a right to live [in the matrimonial home] with her husband and children. She was therefore entitled to the same relief as her husband who owned the house. By analogy with Motherwell, the Court of Appeal in Khorusundjiun granted an owner s daughter an injunction. Dillon LJ concluded that the Court of Appeal could take the same approach as had Clement JA, reconsidering earlier decisions in the light of changed social conditions: 18 [I9861 Ch 20, where mineworkers successfully brought an action in respect of the interference by pickets with their right to go to work. Scott J said, at p 64, that the law should protect rights other than the enjoyment of the plaintiffs own land and considered that there could be a species of private nuisance, namely unreasonable interference with the victim s right to use the highway. But the label for the tort does not, in my view, matter. 19 The principle is well established; see in particular Malone v Laskey [I KB 141, and Metropolitan Properties Lrd v Jones [ All ER 202. A less rigid approach is seen in Newcasfleunder-Lyme Corporation v Wolstanron Lrd [I9471 Ch 92, where it was held that a corporation s statutory right to lay pipes under land would found an action. However, an important factor in the decision was the fact that the corporation had an exclusive right to the possession of the land occupied by the pipes th ed, para [1977] 73 DLR (3d) [1907] 2 KB [I KB [1906] 1 KB The Modern Law Review Limited 1994

5 March Private Nuisance 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. Accordingly, 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. 26 Yet the decision in Motherwell was a departure from authority. It is suggested that Foster v Warblington Urban Council27 does not justify it. There the Court of Appeal found that the plaintiff was in adverse possession of the foreshore and could, if necessary, have proved title to it. Obviously, if the plaintiff was in adverse possession then, even if the limitation period had not expired, he had a fee simple in the land so as to be able to defeat all with a weaker claim than his own.28 Thus, the plaintiff in Foster v Wurblington Urban Council did have an interest in the land. Moreover, the decision in Khorusandjiun goes a great deal further than Motherwell. Dillon LJ argued that if the wife of the owner was entitled to sue in respect of harassing telephone calls, then there was no reason why that should not also apply to a child living at home with her parents. Yet the wife has a status, a right to live there which, while not an interest in land, is legally quite different from the position of an adult living with her parents. The latter is simply a licensee. We might ask: if the daughter can sue, why cannot an owner s lodger, or his employee working on his premises, or a student living in a hall of residence?29 And why should they not do so even if the owner has not suffered the same harassment? In both Khorusandjiun and Motherwell, the owner had so suffered, but that factor does not seem to have been essential to the reasoning in either case. Peter Gibson J in his dissenting judgment in Khorasundjian insisted that the court could only grant an injunction to restrain a tort, and that there is no tort of harassment or pestering. To the extent that Scott J in Thomas v NUM30 was holding that there was now a tort of unreasonable harassment, he disagreed; he quoted with approval the decision in P~tel.~ Equally, he held that English law has not recognised a right of privacy. So far as nuisance is concerned, he stressed that an action in nuisance is to protect the use and enjoyment of land. Without expressly disapproving Motherwell, he stressed that that decision does not assist a person such as Miss Khorasandjian who has no right of oc~upation. ~ 25 [1993] 3 WLR 476, [1993] 3 WLR 476, supra. 28 Possession is good title against all but the true owner : Asher v Whitlock (1865) 1 LR QB Other jurisdictions have gone much further than ours in extending the right to sue in nuisance; see Kodilinye (1989) 9 Legal Studies 284. In particular, it is well established in Canada that a minor child may sue in nuisance for interference with his enjoyment of occupation of the family home. The decision in Khorasandjian was made without reference to the Canadian cases; it appears to rest simply on the reasoning: if the one is entitled, why should not the other be? (or what is sauce for the goose is sauce for the gander). 30 supra. 31 supra. 32 A further aspect of Peter Gibson J s dissent from Dillon LJ is the different view taken of the legitimate extent of an interlocutory injunction. Dillon LJ stressed that such an injunction can be an order quia rimer, and can be granted before a tort has been committed in a form which would not necessarily be appropriate for a final order, so as best to safeguard the interests of the parties. Peter Gibson J, on the other hand, insisted that the actions restrained must be actionable wrongs. 0 The Modern Law Review Limited

6 The Modern Law Review [Vol. 51 The Scope of the Order in Khorasandjian A further disturbing aspect of Khorusundjiun is that the behaviour restrained apparently need have nothing to do with the enjoyment of land. The writer has no quarrel with the view that unwanted telephone calls may amount to a private nuisance, and indeed that point was not at issue in Khor~sundjian.~~ If smell or persistent noise can amount to nuisance, so, surely, can the ceaseless ringing of the telephone and what is heard over the telephone. What is perhaps surprising is that the order made potentially included telephoning the plaintiff not only at home, but also at work, or on a mobile phone. It could have covered speaking to her in the street, or getting a mutual acquaintance to pass on a message to her. Nuisance is the interference with the plaintiffs use and enjoyment of land, and this order would restrain behaviour which would not have been an interference with the enjoyment of premises. The same can be said of the order made in Motherwell; the point does not appear to have been raised or considered by the court in either case. Alternative Approaches (a) In Tort It may be that this enlargement of the tort of nuisance - in terms both of who can sue and of what actions can be restrained - was not in fact necessary to protect Miss Khorasandjian. Consider the developmenp4 of the tort of personal injury by molestation, seen in the decision in Burnett v George3s and based on the authority of Wilkinson v Downton and Janvier v S~eeney.~~ Dillon LJ, in his judgment, indeed drew support from those cases, since they make it clear that physical injury may be inflicted through the medium of the mind, from shock or stress. He pointed out that although the plaintiff was not as yet suffering from any physical or psychiatric illness, there was a risk that the continuing of the defendant s harassment could result in that. Why, then, could not an injunction have been granted in the form seen in Burnett v George, ie qualified by the addition of the words by doing acts calculated to cause the plaintiff harm? It is hard to see any objection from either party s point of view. The effect must have been much the same as an injunction without that qualification, given the ready acceptance by the Court of Appeal that the plaintiffs health was at risk because of the defendant s persecution. However, Dillon LJ declined to make such an order, pointing out that the court s attention in Burnett v George was not directed to nuisance, and holding that the decision did not preclude taking a wider view. He went on to reject the inclusion of any qualification on the ground that it would make enforcement more difficult. The 33 Although it was the major point at issue in Motherwell (supra). It was argued there that telephone calls were merely an invasion of privacy for which no action lay and that the common law could no longer create new categories of nuisance. In answer to this, Clement JA held that persistent harassment by telephone was within the principle of private nuisance. It cannot but affect the senses in time, and operate on the nervous system ; it constituted loss of the amenities of the premises in substantial degree. Clement JA concluded that this amounted to a new category of nuisance, distinct from already recognised ones. 34 See n 11 and associated text. 35 supra. 36 Both supra The Modem Law Review Limited 1994

7 March Private Nuisance concern seems to have been that an individual act of the defendant - say, the sending of a letter containing not threats but unwanted expressions of affection - might well not be harmful in itself. Yet as part of a cumulative campaign of pestering, and against the background of threats in the past, such an act would cause extreme distress. With respect, the writer finds it impossible to see why, therefore, that act should not be said to be calculated to cause the plaintiff harm, albeit not viewed by itself but in its context.37 (b) In Domestic Violence Legislation It is suggested that it would be preferable to tackle the issues raised by Khorasandjian within the statutory framework of domestic violence. We have tailor-made statutory protection for cases of violence and harassment between certain cou les and their children. The reforms proposed by the Law Commissior$ widen the categories of person for whom this protection is available. Yet, according to Peter Gibson J, Miss Khorasandjian would probably not be one of those protected by the reformed legislation. Presumably, this was because she had not had any sort of sexual relationship with the defendant. This must raise the question of whether or not the Law Commission s categories are sufficiently wide. There is, of course, a problem as to where to draw the line. The Law Commission describes the relevant category as follows39: Such relationships are possibly easier to recognise than to describe, but we envisage that there would be a degree of mutuality and participation in sexual activity, although not necessarily amounting to sexual intercourse. This group would not include an unbalanced stranger who develops an obsession from a distance, as this would not involve the necessary family connection. It is suggested that the line should be drawn a little wider, leaving the unbalanced stranger to the law of tort and, if necessary, to the criminal law, but so as to include couples who have been closely involved with each other without sexual activity.@ The emotional element in a relationship may be just as intense where there has not been sexual contact as where there has been. The consequent vulnerability of the victim may be just as great and the law of tort just as inappropriate in procedure and in substance. To give Miss Khorasandjian and others like her access to domestic violence legislation would give them flexible, cheaper and simpler remedies 41 than are available in tort. It would avoid the need to explore the problems of awarding damages for this sort of haras~ment,~~ which would often be inappropriate. And it would leave the law of tort intact from the ad hoc manipulations needed to fit it to situations it was not designed to meet. 37 Peter Gibson J, on the other hand, would have been prepared to grant an injunction on the principle in Burnett v George, restraining actions which do amount to a crime or a tort. Indeed, he preferred that wording to an injunction restraining molestation, as in Parel, since some forms of molestation are tortious while some are not. 38 See n 8 above and associated text. 39 Law Commission Report No 207, para At the risk of sounding prudish, it seems a pity that chastity should be a disqualification from protection. 41 op cit para A whole can of worms proferred by the Khorusandjian decision which this note has not ventured to open. 0 The Modern Law Review Limited

8 The Modem Law Review [Vol. 57 Conclusion It is suggested, with great respect, that the decision in Khorasandjian sits uneasily within the law of tort for two reasons. First, it gives a plaintiff without an interest in land the right to sue in nuisance. Support is drawn for the decision from Motherwell, which has not previously been followed in this jurisdiction and is not itself consistent with authority; yet the ratio decidendi goes even further than that in Motherwell. Second, it granted an order which restrains actions which have nothing to do with the enjoyment of land. It is clearly necessary to protect persons in Miss Khorasandjian s position, but it cannot be desirable to stretch the definition and boundaries of a tort so far that they become meaningless. It would be preferable to see the needs of this type of plaintiff met either by the use of the Burnett v George line of authority, or by the reform of the law relating to domestic violence and molestation. The writer s preference is for the latter. It would be good t? see the Law Commission s recommendations in Report No 207 implemented as soon as possible. However, the decision in Khorasandjian indicates that some further thought is needed beforehand. Re F: The Gooseberry Bush Approach Jane Fortin Don t worry dear, you were found under a gooseberry bush. If E ever reads the decision of the Court of Appeal in Re F, she may consider this to be the court s message to her. E was a little girl of thirteen months, caught up in a paternity dispute and, at one level, the court s refusal to direct blood tests seemed eminently sensible; after all, she had a happy home with her mother and the man she would grow up to know as her father. Was there any real need for her to know exactly who fathered her? The facts in Re F were relatively straightforward. At the time of E s conception, her mother, Mrs F, had been having sexual relations with both the appellant, B, and her husband, Mr F, but she had broken off her relationship with B before E was born. From the time of her birth, E was brought up by Mr and Mrs F as a child of their marriage and she had never had any contact of any kind with B. B, convinced that he was E s real father, applied to the magistrates court for a parental responsibility order and a contact order. His application was opposed by Mrs F, who with her husband, wished to bring up E undisturbed by B. The magistrates transferred B s application to the Principal Registry of the Family Division. The District Judge referred to the High Court the question whether there should be a direction for blood tests to determine, through DNA profiling, whether B was indeed E s father. Judge Callman declined to make such a direction. Undeterred, B appealed to the Court of Appeal who confirmed Judge Callman s decision. *Senior Lecturer in Law, King s College London. 1 [1993] 1 FLR The Modem Law Review Limited 1994