In his landmark ruling on June 12, 2006, Supreme Court Justice Reid brought hope to victims of stalking by granting an injunction against a woman accused of harassing a well-known broadcaster for 15 years, after claiming that she and late Prime Minister Michael Manley are her parents. Following is the full text of the judgement by Justice Bryan Sykes, on which Justice Reid based his ruling:

(NB: Names of the claimants and defendant have been whithheld by the Sunday Observer).

1. Mrs X (the broadcaster), first claimant, is the registered proprietor of the house where she lives in the parish of St Andrew. Mrs Y (her daughter), the second claimant, lives in a studio at the same premises. Mrs Y does not have known proprietary interest in the property and neither does she have or is entitled to exclusive possession. Mrs X is the mother of Mrs Y.

They have come to this court seeking an injunction to protect them from telephone calls the defendant made to the telephone number assigned to Mrs Y on February 21, 22 and 23, 2006. The telephone is at the house where both claimants live. These telephone calls are the latest episode in a 15-year saga during which the defendant has been bothering Mrs X. Mrs Y (her daughter) does not appear to be the target of the defendant’s obsession.

2. The claimants seek an interim injunction in the following terms:

The defendant by herself or by her agent or whosoever on her instruction be restrained from:

i. harassing, molesting, threatening, pestering, assaulting or otherwise interfering with the claimants

ii. communicating with them by telephone or otherwise

iii. watching, besetting or coming or remaining within 500 feet of claimant (sic), the first claimant’s residence or behaving towards them in any other manner which is of such nature or degree as to cause annoyance or interference to the claimant and amount to nuisance.

3. I have used the allegations from the amended particulars of claim to state the history of the matter. Since approximately 1991, the defendant has been harassing Mrs X (broadcaster). The defendant believes that she is the abandoned daughter of Mrs X and the Right Honourable Michael Manley (the former Prime Minister of Jamaica). Mrs X emphatically denies that she had any relationship with Mr Manley and she definitely did not have his daughter.

4. The defendant’s harassment of Mrs X began when the claimant worked at the now defunct (media house). Mrs X has changed jobs a number of times since 1991 and at each new workplace the defendant appears and tries to secure acknowledgement that she is the first claimant’s daughter. The defendant has, over the years, sent to the first claimant unwelcome and unwanted cards and letters.

5. The defendant has contacted Mrs X by telephone at her places of employment. Mrs X now works at (media house)….

The defendant is at these premises almost daily. The defendant waits at the gate or across the street. The first claimant has another job at (name deleted). The defendant contacts her there by telephone. There is no indication that the calls threaten violence, but they are clearly annoying and upsetting to the first claimant.

6. Matters escalated since June 2005 when the defendant turned up at… Church, where the first claimant worships and made quite a scene which caused Mrs X grave embarrassment. On two occasions in December 2005, the defendant berated Mrs X at the church. The constant fear of the defendant’s presence at the church led to Mrs X changing her place of worship where she has worshipped for approximately 30 years.

7. There is evidence to suggest that the defendant is suffering from a psychiatric illness and that she has been treated and is being treated by psychiatrists. It is said that the defendant has admitted to having a fixation on Mrs X.

8. The claimants allege that unless the defendant is restrained, they fear that they will be unable to live free from fear of the defendant’s harassment. Warnings from the police and the private security firm employed by Mrs X have not had the desired effect. The claimants believe that the defendant will at some point arrive at the civic address of the claimants and behave in the same way she does at each new place of employment.

9. It was the calls made on February 21, 22, and 23, 2006, to the first claimant’s home on a telephone line in the name of the second claimant that have precipitated this application. In one message left on the telephone answering service, the defendant admitted that she has been treated by numerous psychiatrists, has taken prescribed medication for her illness and has been hospitalised on at least 14 occasions. Understandably, both claimants fear for their safety. The claimants hang their claim for the injunction on the peg of private nuisance.

10. It is observed that the terms of the injunction all speak to acts directed at the claimants in their personal capacity, that is to say, it affects the claimants whether or not they are registered proprietors or entitled to exclusive possession or have exclusive possession of land and does not diminish their employment of the property as property. This observation, without more, is sufficient for me to say that the tort of nuisance cannot be used to ground this injunction. However, I shall not leave the matter there. I shall demonstrate by analysing the law that the injunction sought cannot be granted in this cause of action.

The law

11. It is well established law that an injunction is not a cause of action but a remedy flowing out of a cause of action, that is to say, facts which give rise to the claim recognised by law (see Siskina (cargo owners) v Distos Cia Naviera Sa The Siskina [1979]AC 210). The claimants rely on private nuisance as the cause of action. The first question is whether the conduct alleged amounts to private nuisance.

12. Mrs X obviously has a proprietary interest in the land where the telephone is located and so has locus standi to bring the action in nuisance. Mr (Crafton) Miller has cited the case of Khoransandjian v Bush [1993] 3 All ER 669 in support of the proposition that telephone calls can constitute harassment which itself can amount to private nuisance. For reasons that I shall give later I do not agree with this proposition. What Khoransandjian and the instant case highlight is the yawning gap in common law. It does not recognise any general right to privacy and up until now has not explicitly recognised the tort of harassment.

13. Dillon L J in Khoransandjian took the bold step of declining to follow a previous decision of the English Court of Appeal of Malone v Laskey [1976] 74 D L R (3d) 62) in order to grant the remedy sought. Dillon L J took the view that the law did not prevent a person without proprietary interest in land from suing in private nuisance.

He went on to suggest that persons with less than proprietary interest or the right to exclusive possession could sue. Thus spouses and children without any of the interests just mentioned could sue. Rose L J concurred with this radical judgement. Peter Gibson J strongly disagreed.

14. This revolt was short-lived and by 1997, the House of Lords restored orthodoxy and halted the advance of the heresy in a firm and decisive manner in its decision of Hunter v Canary Wharf [1997] A C 655. The House decided, accepting the submissions of Lord Irvine, that to sue in private nuisance the claimant must have a proprietary or possessory interest of land; mere occupation is insufficient.

This is so because the tort of nuisance has as its main object the protection of a person’s enjoyment of his land. As will be shown, it is entirely logical that the law requires that the claimant should be the person in actual possession as (a) free holder, (b) a tenant or (c) at least a licensee in exclusive possession.

A reversioner can only sue if the nuisance is such that his reversionary interest is being damaged. The House scotched the purported distinction relied on by Dillon L J distinction between a mere licensee and a person with occupation of a substantial nature short of the three things just mentioned. Lord Goff stigmatised the approach of Dillon L J as an improper method of introducing through the back door a new tort. Lord Goff said at page 691-692:

If a plaintiff, such as the daughter of the householder in Khoransandjian v Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone.

In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law, especially when, as in the case in question, the step so taken was inconsistent with another decision of the Court of Appeal, viz Malone v Laskey [1970] 2 K B 141, by which the court was bound. In any event, a tort of harassment has now received statutory recognition: See the Protection from Harassment Act 1997.

We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy. For these reasons, I do not consider that any assistance can be derived from Khoransandijan v Bush by the plaintiffs in the present appeals.

It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected.

Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally however, as Foster v Warblington Urban District Council shows, this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far as his reversionary interest is affected. But a mere licensee on the land has no right to sue.

15. The weakness of the claimants’ case based on private nuisance is exposed by the fact that had the same conduct being used to ground the injunction, namely the telephone calls between February 21 and 23, 2006, taken place at places of work or out in the public square via cellular telephones, no lawyer would think of a claim in private nuisance.

The opening sentences of the just cited passage make the point well. The complaint in this case before me is really one of a personal nature rather than one that has anything to do with land per se. Lord Goff also objected to this extension on the grounds that the substantial-connection-with-the-property test on which Dillon L J relied was too uncertain in determining who should sue.

16. Lord Berwick’s classification of the three types of nuisance really puts an end to the claimants’ argument based on the tort of private nuisance. He stated at page 695 and 96:

Private nuisance are of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. In cases (1) and (2) it is the owner, or the occupier with the right to exclusive possession, who is entitled to sue. It has never, so far as I know, been suggested that anyone else can sue, for example, a visitor or a lodger; and the reason is not far to seek. For the basis of the cause of action in cases (1) and (2) is damage to the land itself, whether by encroachment or by direct physical injury.

In the case of encroachment the plaintiff may have a remedy by way of abatement. In other cases, he may be entitled to an injunction. But where he claims damages, the measure of damages in cases (1) and (2) will be the diminution in the value of the land.

This will usually (though not always) be equal to the cost of reinstatement. The loss resulting from diminution in the value of the land is a loss suffered by the owner or occupier with the exclusive right to possession (as the case may be) or both, since it is they alone who have a proprietary interest, or stake, in the land. So it is they alone who can bring an action to recover the loss.

Like, I imagine, all your Lordships, I would be in favour of modernising the law wherever this can be done. But it is one thing to modernise the law by ridding it of unnecessary technicalities; it is another thing to bring about a fundamental change in the nature and scope of a cause of action. It has been said that an actionable nuisance is incapable of exact definition. But the essence of private nuisance is easy enough to identify, and it is the same in all three classes of private nuisance, namely, interference with land or the enjoyment of land. In the case of nuisances within class (1) or (2) the measure of the damages is, as I have said, the diminution in the value of the land.

Exactly the same should be true of nuisance within class (3). There is no difference or principle. The effect of smoke from a neighbouring factory is to reduce the value of land. There may be diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that be the right approach, then the reduction in amenity value is the same whether the land is occupied by the family man or the bachelor.

If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question.

It also follows that the only persons entitled to sue for loss of amenity value of the land are the owner or the occupier with the right to exclusive possession.

17. The question is, in which of these three categories does the claimants’ case fall? There is certainly no encroachment and there is undoubtedly no direct physical injury to the land of the claimant. We are therefore left with the third category. But does the action complained of fit there? Regrettably, the answer is no.