Khorasandjian v Bush

An interlocutory injunction must support an existing or potential claim for substantive relief within the court’s jurisdiction, but its terms may be shaped to preserve the parties’ position pending trial. English law recognises no free-standing tort of harassment, and describing conduct as unreasonable does not create one. Particular conduct may nevertheless be restrained where it threatens an actionable tort. Persistent unwanted telephone calls may constitute private nuisance where they interfere with the ordinary and reasonable use and enjoyment of premises in which the claimant is lawfully present. A continuing campaign may also be restrained quia timet where its cumulative effect presents an obvious risk of recognisable psychiatric illness. Injunctions must be sufficiently specific, but may use plain language rather than technical terminology.

After a friendship ended, the defendant allegedly assaulted, threatened, followed, abused and persistently telephoned the claimant. She obtained an interlocutory injunction in the Barnet County Court on 19 May 1992. On 10 July 1992 the judge refused an application to commit the defendant for breach and replaced the earlier order with an injunction restraining violence, harassment, pestering and communication. The defendant appealed, arguing that the wider restraints protected no recognised tort and exceeded the court’s jurisdiction. He also appealed an assistant recorder’s refusal to vary or discharge the order, but that appeal was academic. The central issue was whether the order was ancillary to a sustainable cause of action and whether its wording was sufficiently lawful and certain.

1. Majority, per Dillon LJ, with Rose LJ agreeing. The county court had the same injunctive power as the High Court. Under section 37(1) of the Supreme Court Act 1981, an interlocutory injunction must be ancillary to an actual or potential action claiming substantive relief within the court’s jurisdiction, as explained in The “Siskina” v Distos Compania Naviera S.A. [1979] AC 210. The form of relief need not mirror the final remedy if a different order best preserves the parties’ position pending trial, following Fresh Fruit Wales Ltd v Halbert and Others The Times, January 29th 1991 (C.A.).
2. There is no independent tort of harassment, and adding the word unreasonable does not alter that position. Nor is every form of molestation actionable. However, threats of violence, interference with property and conduct calculated to cause illness may constitute actionable wrongs. Persistent unwanted telephone calls may amount to private nuisance where they cause annoyance and inconvenience and interfere with the ordinary and reasonable enjoyment of premises by a person lawfully present there. The majority adopted the approach in Motherwell v Motherwell [1976] 73 D.L.R. (3d) 62 and declined to apply the narrower approach associated with Malone v Lasky [1907] 2 KB 141.
3. The court could consider the defendant’s conduct as a cumulative campaign. Applying the principles in Wilkinson v Downton [1897] 2 QB 57 and Janvier v Sweeney [1919] 2 K.B. 316, continuation of the campaign presented an obvious risk of recognisable psychiatric illness. A quia timet injunction was therefore justified even though illness had not yet been established by medical evidence. Burnett v George [1992] 1 F.L.R. 525 did not preclude this wider nuisance-based and cumulative approach.
4. The judge could use either the familiar term molestation or plainer words such as harassment and pestering. The injunction had to be sufficiently specific for enforcement but general enough to prevent evasion. A qualification limiting the restraint to acts calculated to cause harm was unnecessary and undesirable on these facts.
5. Peter Gibson J dissented in part. He considered the restraints against harassment, pestering and communication too wide unless expressly confined to actionable wrongs or conduct facilitating such wrongs. He preferred the approach in Burnett v George and would have substituted a narrower order under R.S.C. Order 59, rule 10(3).
6. The appeal was dismissed. Costs were not to be enforced without leave, legal aid taxation was ordered, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: On 16 February 1993 the court dismissed the appeal from the interlocutory injunction. The separate appeal concerning the assistant recorder’s refusal to vary or discharge the order was not argued because it was academic.
2. Barnet County Court: On 10 July 1992 His Honour Judge Stockdale Q.C. refused committal for breach and granted a replacement interlocutory injunction. On 29 October 1992 an assistant recorder refused an application to vary or discharge that order.