Today we conclude the judgment by Justice Bryan Sykes on which Supreme Court Justice Reid based his landmark ruling on June 12, 2006 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.

18. This passage establishes that the way in which damages are measured in the tort of private nuisance makes it difficult for the claimants to sustain their case under this tort. Can it be said that there has been a loss of amenity value of the property where the claimants live? If the tort of nuisance is as I understand it, the question then is what diminution in value or enjoyment of the land has occurred because of the telephone calls? How would the damages for Mrs Y be assessed? Would it be any different for her mother’s?

19. Lord Hoffman, another of the majority, stated that the third category of private nuisance identified by Lord Berwick has, overtime, been seen quite erroneously, as dealing with personal discomfort to the individual and not the land. The third category is not about personal discomfort per se though the nuisance may in fact produce personal discomfort. It is about reducing the usefulness of the land. To quote from Lord Hoffman at page 707:

Once it is understood that nuisances “productive of sensible personal discomfort: (St Helen’s Smelting Co v Tipping, 11 H L Cas 642, 650) do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable.

20. When understood in this way it is obviously quite a stretch to say that the telephone calls have reduced the usefulness of the land. The light shed by Lord Hoffman has stripped the present claim of any proper legal foundation for an injunction. What the claimants are really concerned about is their personal discomfort and not the reduced utility of the land.

Mr Miller sought to overcome these difficulties by suggesting that the question of whether telephone calls are sufficient to constitute private nuisance was left intact by Hunter’s case. The claimants’ written submissions say that that issue was not before the House and therefore is still the law that telephone calls may constitute private nuisance.

I doubt this very much because phone calls per se are extremely unlikely to reduce the utility of the land as land. For this reason, I do not think that the actual decision of Khoransandjian that telephone calls can constitute the tort of private nuisance can stand with the analysis of the majority of the House of Lords and must necessarily be overruled in so far as it decides that telephone calls can amount to the tort of private nuisance.

21. The dissenting judgment of Lord Hope has not satisfactorily answered the issues raised by the majority. His references to international developments relating to the rights of children and other developments do not advance his thesis. I therefore conclude that the first claimant’s claim fails on the basis that telephone calls per se do not constitute the tort of private nuisance.

The second claimant fails for the same reason and additionally, she fails because there is no evidence of any proprietary interest or right to exclusive possession in her. But is this necessarily the end of the matter? I do not think so.

22. The House, in Hunter, was relieved of the problem of considering whether the common law should now recognise a tort of harassment. I should state explicitly that I agree with the reasoning of the majority of the House of Lords in Hunter that private nuisance is not the appropriate tort for the kind of conduct for which an injunction is being sought in the case before me.

However, I do not agree with the House that Clement J A who delivered the judgement of the court in the Canadian case of Motherwell, misread the English case of Foster v Warblington Urban District Council [1906] 1 K B 648. What he was doing was to demonstrate the ability of the common law to adapt to new situations.

He made reference to the development in the law of negligence, restitution, unjust enrichment and fiduciary duties to make the point about the adaptability of the common law. To this could be added freezing injunctions and search orders. Clement J A was quite aware that he was being asked to apply the law of nuisance not covered by previous exposition of the law.

23. Should a tort of harassment now be recognised? The issues in the case of Minna Wong v Parkside Health NHS Trust and Anr [2001] EWCA Civ 1721 (delivered November 16, 2001) were (1) the limits of the tort of intentional inflicting harm under the Wilkinson v Downton [1897] 2 Q B 57 principle and (2) whether the tort of harassment existed before the Prevention of Harassment Act of 1997.

Lady Justice Hale stated that the Wilkinson v Downton principle had not gone as far as giving a cause of action if the conduct of the defendant was deliberate but there was no physical harm or recognised psychiatric illness. She said that the necessary ingredients of the tort are (1) the defendant acted deliberately and intended to violate the claimant’s interest in freedom from such harm and (2) actual damage which is either physical or a recognised psychiatric illness (see paras 11 and 12).

She added that the damage must be such that the degree of harm was sufficiently likely to result from the defendant’s conduct. Apparently the intention to cause the harm under the tort of intentional harm must be pleaded specifically (see para 13).

24. Lady Justice Hale (as she was then) embarked upon an analysis to determine whether the tort of harassment existed. Hale L J concluded her analysis by saying that “[there was] no warrant for concluding that the common law had by then [the time of Hunter] reached the point of recognising a tort of intentional harassment going beyond the tort of intentional infliction of harm.

It is a clear indication that matters should now be left to Parliament” (see paragraph 29). It is significant that she also concluded that “until that Act came into force, there was power to restrain by injunction conduct which might result in the tort of intentional infliction of harm or otherwise threaten the claimant’s right to access to the courts, but there was no right to damages for conduct falling short of an actual tort” (see paragraph 30) (my emphasis).

25. Her Ladyship concluded, upholding the decision to strike out the case against the second defendant, that at the time the alleged incidents took place there was no tort of harassment. It is to be noted that Hale L J was speaking in the post Prevention of Harassment Act era and so she was not concerned with whether the tort of harassment ought to be recognised. She simply decided that the tort did not exist at the time the claimant filed her action against the second defendant.

The Act, it was said, did not operate retrospectively. It is important to note that the Lady Justice did not identify any conceptual impediments to recognising such a tort. When she observed that the tort of intentional harassment did not extend to cover situations where there was not physical harm or recognired psychiatric illness, she was simply identifying the boundaries of that tort.

Her conclusion, in my view, only served to highlight the gap in the law. It is quite remarkable that the claimant has to suffer either physical harm or a recognised psychiatric illness before he can succeed whenever harassment is being alleged. I would have thought that the law would wish to prevent physical or psychiatric harm once there is clear evidence of harassing conduct aimed at producing the harm but has not yet done so.

Even if the claimant launches a claim alleging the tort of intentional harassment, he would only receive, until trial, an interim injunction on a quia timet basis but would fail if, at the subsequent trial, he was unable to prove physical harm or a recognised psychiatric illness.

26. Implicit in Her Ladyship’s analysis and conclusion is that prior to the 1997 Act, harassment cases can be dealt with under the rubric of the tort of intention to inflict harm. Her Ladyship was therefore saying if the harassment in question might (not did) result in the tort of intentional infliction of harm then an interim injunction may be granted. This is one way in which the current case may be dealt with and I agree with the Lady Justice on this.

This solution for the reasons I have stated above is not the best that the law can devise.

27. What is significant about the Minna case and those cited by Hale L J is that there was no doubt that the conduct complained of was harassment. They were targeted at the claimants in all the cases with the clear intention of making the claimants’ lives miserable.

Harassment may not produce any recognised psychiatric illness and may not produce any physical harm but there can be no doubt that it produces anxiety and distress.

When one reads the cases, the language is all there to identify the elements of the tort of harassment. In response to the analysis of Hale L J we are left with three options. First, extend the tort of intentional harm to cover situations where there is no physical damage or recognised psychiatric illness, (b) recognise explicitly the tort of harassment or (c) await legislative action.

Of these three I opt for the second. I do so for these reasons. The tort of intentional harm has already been established and its ingredients are well known.

Awaiting legislative action is not an attractive proposition given that there is no indication that this matter will be considered any time soon and that the common law can be developed in a manner consistent with existing law to deal with harassment. It would seem to be that the common law can and should evolve to deal with these situations. The recognition of this tort would complete the circle of torts that deal with conduct directed at persons. It would fill the gap between assaults and the tort of intentional harm.

28. The tort of harassment should now be recognised. In taking this step, I am doing nothing more than what Wright J did in Wilkinson v Downton, that is, recognising that certain facts do give rise to a cause of action.

The elements as I see it are deliberate conduct directed at the claimant resulting in damage; the damage being anxiety and distress, short of physical harm or a recognised psychiatric illness. Professor Fleming makes the point that frequently the intention of the defendant is to frighten, terrify or alarm the claimant. I agree with this, but for the tort of harassment these are not necessary though sufficient to sustain the tort of harassment. The defendant may only intend to produce anxiety or distress.

Mere annoyance is not enough. There is nothing in Hunter or indeed any case that suggests that defining the tort of harassment in this way would do any violence to existing legal concepts. The issue of how the damages should be quantified is not an obstacle. The courts have long experience in assessing damages in difficult areas (see Lord Hoffman in Hunter). In the tort of harassment, the most likely remedy is an injunction.

Conclusion

29. The final question is the disposition of the case before me. The law of private nuisance is an improper vehicle to ground the injunctive relief sought. The application for the injunction is dismissed because private nuisance is not an appropriate cause of action out of which the injunction prayed can flow. The claimants’ need to amend their claim or file a new claim alleging either (a) the tort of intentional harm where an injunction an quia timet basis may be granted or (b) the tort of harassment.