WHITESIDE v. THE UNITED KINGDOM



                       AS TO THE ADMISSIBILITY OF

                      Application No. 20357/92

                      by Marina WHITESIDE

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

7 March 1994, the following members being present:

      MM.  C.A. NØRGAARD, President

           E. BUSUTTIL

           G. JÖRUNDSSON

           A.S. GÖZÜBÜYÜK

           J.-C. SOYER

           H.G. SCHERMERS

           H. DANELIUS

      Mr.  F. MARTINEZ

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           M.P. PELLONPÄÄ

           B. MARXER

           B. CONFORTI

           N. BRATZA

           I. BÉKÉS

           E. KONSTANTINOV

           D. SVÁBY

      Mr.  M. de SALVIA, Deputy Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 10 July 1992 by

Marina Whiteside against the United Kingdom and registered on

24 July 1992 under file No. 20357/92;

      Having regard to :

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on      18

      March 1993 and the observations in reply submitted by the applicant

      on 26 July 1993;

-     the further observations submitted by the applicant on 18 February

      1994;

-     the parties' oral submissions at the hearing on 7 March 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

a.    The particular circumstances of the case

      The applicant is a British citizen born in 1959 and resident in

Blackpool. She is represented by Ms. Jillian Baxter, a solicitor

practising in Preston, and Mr. Edmund Farrell, a barrister practising in

Manchester. The facts as submitted by the parties may be summarised as

follows.

      The applicant is a divorced and single woman living with her five

children, who range in age from 12 to 3. Her three younger children

suffer from Ehlers-donlos syndrome and the very youngest suffers in

addition from spina bifida.

      In 1984, the applicant formed a relationship with Mr. B. and they

cohabited until 1989. Mr. B. is the father of the two youngest children.

The applicant alleges that Mr. B. became violent and abusive towards her

and she left him. She and the children obtained accommodation from the

local authority which was however only a few hundred yards from Mr. B.'s

house.

      Mr. B. enjoyed access visits to the oldest of his children until

late 1990 when the child  alleged that he had indecently assaulted her.

      The applicant claims that since then she and her children have been

seriously harassed by Mr. B.. She refers to the following incidents:

      - on 9 March 1991, he forcibly entered the applicant's house;

      - on 10 March 1991, he again tried to enter her house shouting

      abuse;

      - from 11 to 13 March 1991, he waited in an alley on the applicant's

      route back from school and on one occasion took hold of her and

      shook her;

      - on 16 March 1991, he tried to gain entry to the house;

      - in October 1991, the applicant discovered that sugar had been

      placed in the petrol tank of her car;

      - since October 1991, the tyres of the applicant's car have been

      slashed 8 times;

      - since October 1991, Mr. B. has taken to following the applicant

      in his car when, for example, she takes the children to school,

      nursery or dancing classes. He allegedly drives in an erratic and

      dangerous manner approaching very close to her car, on one occasion

      blinding her with his headlights and on another forcing her to

      swerve in order to avoid a collision. He frequently sounds his horn

      in a loud and menacing manner;

      - on 24 January 1992, Mr. B. followed the applicant in his car to

      her solicitors' office and remained waiting outside;

      - on 30 January 1992, he followed the applicant to a St. John's

      Ambulance Centre and when she drove off, he drove in front of her

      car and then braked suddenly. He then pulled in front of her again

      at traffic lights forcing her to swerve to avoid a collision.

      On 21 February 1992, the applicant instituted proceedings against

Mr. B. at the County Court, seeking damages and an injunction restraining

Mr. B. from using violence against her and an injunction restraining him

from threatening, harassing, pestering or otherwise interfering with her.

In her affidavit of 21 February 1992, the applicant submitted: "the

police say that they are unable to help me as, as yet, the Defendant has

not committed an illegal act. I am myself at the end of my tether. I am

now experiencing dizzy and fainting sensations when I am trying to drive.

I am tense and I have panic attacks whilst I am driving.....He is making

my life a misery and he is also putting my life, and that of my children,

in danger..."

      Mr. B. swore an affidavit in reply on 25 February 1992 in which he

denied the allegations.

      At the hearing on 26 February 1992, the district judge refused an

interlocutory injunction but gave the applicant leave to amend her

particulars of claim and to make a new application. The applicant's

solicitor's manuscript note of the judgement noted that there was no tort

of harassment and referred to the case of Patel v. Patel (1988 2 FLR 179)

in which it had been held by the Court of Appeal that an injunction could

only be granted where an actual tortious act had or was likely to be

committed. Costs were reserved to be dealt with at the subsequent

hearing.

      The applicant renewed her application requesting an injunction to

prohibit Mr. B. from assaulting her and from entering her property.

      On 13 March 1992, the County Court judge refused to grant any

interlocutory injunctive relief.  The applicant's solicitor's note of the

proceedings also recalled that the case of Patel v. Patel was mentioned.

The judge's notes recorded that at the earlier hearing it had been agreed

that there was no cause of action as no particulars of assault or

trespass had been pleaded. Since it was his view that even if the

applicant substantiated her claims no injunction was possible, he did not

hear any oral evidence or make any specific findings on the written

evidence before him. The judge reserved the issue of costs to a specific

hearing of the matter in view of the possibility of making an order that

the applicant's lawyers pay her costs personally, disallowing the

applicant's lawyers' costs on the basis that they had wasted court time

in bringing the application.

      Following a hearing on 23 April 1992, the county court judge

disallowed part of the applicant's lawyers' costs.

      On 14 June 1993, Mr. B. applied to the court to strike out the

applicant's claim for final relief as disclosing no cause of action. The

applicant's counsel attended court without being covered by legal aid and

resisted the application successfully.

      An extension in legal aid for the applicant to pursue her claim for

damages and/or an injunction was refused by the legal aid authority. The

applicant's appeal to the Area Committee of the legal aid authority was

dismissed by letter of 10 August 1993 on the ground that any award of

damages obtained would be likely to be modest and would not justify

proceedings at public expense.

      The applicant has succeeded in obtaining alternative local authority

housing, but her new home is still relatively close to the area where Mr.

B. lives.

      Following the court proceedings Mr. B. continued to follow the

applicant in his car and to keep watch on her outside her house. On

4 May 1992, she reported to the police that some kind of poisonous

substance had been poured over her garden, which killed the vegetation.

On 19 June 1992, the applicant returned to her car to find Mr. B. lying

under the car by the tyres, which action he explained by stating that he

was tying his shoelaces.

      In a statement dated 23 February 1994, the applicant stated that the

harassment, molestation and pestering by Mr. B. continues. He persists

in following the applicant when she drives in her car and trying to reach

her destination before her. The pressure and stress that this has caused

her has resulted in a curtailment in the activities of her children and

the abandonment of an academic course which she was following.

b.    Relevant domestic law and practice

Injunctive relief

      The power of the County Courts to grant injunctions, whether

interlocutory or final, in the cases where the County Court has

jurisdiction, is the same as the power in the High Court (section 38 of

the the County Courts Act 1984 as amended). The statutory authority

contained in section 37(1) of the Supreme Court Act 1981 provides that

the High Court may by order, whether interlocutory or final, grant an

injunction "in all cases in which it appears to the Court to be just and

convenient to do so".

      The courts interpret this power in practice as presupposing the

existence of an action, actual or potential, claiming substantive relief

which the court has jurisdiction to grant (eg the Siskina 1979 AC 210).

      The grant of an injunction is discretionary. It will only be granted

if it is shown, inter alia, that it is necessary ie. because it is likely

that the defendant will repeat the actions complained of. In this

context, the courts take into account how long ago the last action

complained of took place.

Remedies available under domestic law

      The law of tort provides, inter alia, for actions claiming damages

in respect of trespass to the person (false imprisonment, battery or

assault), trespass to land or to goods. There are also dicta suggesting

an action may lie in tortious interference with the highway (Thomas v.

National Union of Mineworkers 1986 1 Ch).

      The tort of nuisance provides remedies where there is undue

interference with the use and enjoyment of land.

      In the case of Khorasandjian v. Bush (1993 QB 727), the Court of

Appeal held, by a majority, that where the defendant (an ex-boyfriend)

was pestering the plaintiff, inter alia, by repeated telephone calls,

such conduct amounted to private actionable nuisance in that it

interfered with the ordinary and reasonable use of property, and that the

County Court had power to grant an injunction in this context.

      An action may also be brought in tort in respect of conduct which

is calculated to impair the plaintiff's health whether physical or mental

and having that effect (Wilkinson v. Downton 1897 2 QB 57, Janvier v.

Sweeney 1919 2 KB 316 and Burnett v. George 1992 1 FLR 525). In this last

case, in which the plaintiff complained of being the victim of a campaign

of harassment from a former male friend, the Court of Appeal granted an

interlocutory injunction prohibiting the defendant from "assaulting,

molesting or otherwise interfering with the plaintiff by doing acts

calculated to cause her harm". In the case of Khorasandjian v. Bush (see

above), the Court of Appeal also appear to have considered that the grant

of an interlocutory injunction was justified under this line of

authority. While it did not appear in that case that the plaintiff was

as yet suffering from any physical or psychiatric illness there was an

obvious risk that the cumulative effect of the campaign of harassment

would cause such illness. Consequently, the courts were entitled to look

at the defendant's conduct as a whole and to restrain his acts of

harassment on a quia timet basis. The majority of the court thus approved

an injunction by the county court judge restraining the defendant from

harassing or molesting the plaintiff. The dissenting judge considered

that the injunction should have been restricted to "acts calculated to

do the harm".

      The existence of a tort of harassment has yet to receive express

recognition under English law. In Patel v. Patel (1988 2 FLR 179), Mr

Justice Waterhouse in the Court of Appeal stated that "in the present

state of the law there is no tort of harassment". Lord Justice Dillon in

the Khorasandjian case commented that he found it "difficult to give much

weight to that general dictum ...when the reformulated injunctions which

Waterhouse J. approved included an injunction restraining the defendant

from molesting the plaintiff". In the consultation paper of the Lord

Chancellor's Department "Infringement of Privacy" dated July 1993, it was

stated:

      "4.16 The question whether there exists a general tort of harassment

      in England and Wales has been considered twice by the Court of

      Appeal in recent years, in cases involving family or personal

      relationships. The Court took different approaches in the two cases.

      In Patel v. Patel Waterhouse J; stated that "in the present state

      of the law there is no tort of harassment" and May LJ that "in

      common-law actions based upon an alleged tort injunctions can only

      be an appropriate remedy where an actual tortious act has been or

      is likely to be committed". On the other hand, in Khorasandjian v.

      Bush, Dillon LJ and Rose LJ came close to saying that there was such

      a tort, although they did not do so expressly...

      4.20 The present state of the law is uncertain, with conflicting

      decisions both in the High Court and the Court of Appeal. It is too

      early to say categorically that there is now a tort of

      harassment...".

COMPLAINTS

      The applicant complains of the continued harassment inflicted on her

by Mr. B. in respect of which she is afforded no practical or effective

remedy in the domestic courts. This, she submits, discloses a lack of

respect for her private life and home and an interference with her

enjoyment of her possessions, namely, her home. She invokes Articles 8

and 13 of the Convention and Article 1 of Protocol No. 1 to the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 10 July 1992 and registered on

24 July 1992.

      On 12 October 1992, the Commission decided to communicate the

application to the Government and to ask for written observations on the

admissibility and merits of the application.

      The Government's observations were submitted on 18 March 1993 after

one extension of the time-limit, and the applicant's observations in

reply were submitted on 26 July 1993 after one extension of the

time-limit.

      On 14 May 1993, the Commission decided to grant legal aid to the

applicant.

      On 18 October 1993, the Commission decided to invite the parties to

make submissions at an oral hearing.

      On 18 February 1994, the applicant presented further written

submissions.

      At the hearing held on 7 March 1994, the parties were represented

as follows:

For the Government

Mr. Huw Llewellyn           Agent

Mr. James Holman, Q.C.      Counsel

Ms Andrea Jenkins           Legal Adviser, Lord Chancellor's Department

Ms Susan Dickson            Legal Adviser, Foreign and Commonwealth

                                                            Office

Ms Gloria Wilkinson         Administrator, Lord Chancellor's Department

For the applicant

Mr. Edmund Farrell          Counsel

Mr. John Roberts            Solicitor

The applicant also attended.

THE LAW

1.    The applicant complains that the failure to provide her with a

remedy in the domestic courts in respect of the harassment by Mr. B.

constitutes an infringement of her right to respect for her private life

and home and with the peaceful enjoyment of her possessions, namely, her

home. She invokes Article 8 (Art. 8) of the Convention and Article 1 of

Protocol No. 1 (P1-1) to the Convention.

      Article 8 (Art. 8) of the Convention provides:

      "1.  Everyone has the right to respect for his private and family

      life, his home and his correspondence.

      2.   There shall be no interference by a public authority with the

      exercise of this right except such as is in accordance with the law

      and is necessary in a democratic society in the interests of

      national security, public safety or the economic well-being of the

      country, for the prevention of disorder or crime, for the protection

      of health or morals, or for the protection of the rights and

      freedoms of others."

      Article 1 of Protocol No. 1 (P1-1) to the Convention provides in its

first sentence:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions...".

      The applicant submits that the United Kingdom is under a positive

obligation to ensure the effective implementation of its Convention

obligations. She submits that the Government have failed to provide in

their law for practical and effective protection from harassment and that

this is in violation of her rights as guaranteed by Article 8 (Art. 8)

of the Convention and Article 1 of Protocol No. 1 (P1-1) above.

      As to whether the responsibility of the Government is engaged, the

Government have made no specific submission but leave the question to be

decided by the Commission in the light of its jurisprudence.

      The Commission recalls that the obligation to secure the effective

exercise of Convention rights imposed by Article 1 (Art. 1) of the

Convention may involve positive obligations on a State and that these

obligations may involve the adoption of measures even in the sphere of

relations between individuals (see eg Eur. Court H.R., X. and Y. v. the

Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, paras. 22

and 33).

      On the facts of this case, the alleged harassment of the applicant

by Mr. B. is of a level which could arguably constitute an interference

with the applicant's right to respect for her private life and the

enjoyment of her home. The Commission notes the persistent and

distressing nature of the alleged conduct of Mr. B. and the consequent

effect which it has had on the applicant and the way in which she leads

her life. In these circumstances, the Commmission finds that the

responsibility of the State is engaged and that it is under a positive

obligation to secure the applicant's rights by providing adequate

protection against this type of deliberate persecution.

      The respondent Government submit however that the applicant has

failed to exhaust domestic remedies since her case against Mr. B. was not

sufficiently or adequately pursued in the domestic courts. They point out

that so far as damage to her home, garden or car was concerned, or direct

assault upon herself, she had clear and undoubted remedies based on

trespass to her property or goods, and assault. They refer in respect of

her other complaints to a range of remedies, including a claim for

damages and an injunction, based on tortious interference with the right

to use the highway, conduct calculated to impair health and having that

effect, or  nuisance. They also submit that the Court of Appeal in the

case of Khorasandjian v. Bush (1993 QB 727) found that harassment could

constitute tortious conduct and could permit the grant of an injunction.

Further, they point out that the applicant failed to appeal to the Court

of Appeal from the decision of the County Court refusing an interlocutory

injunction and that it does not appear that she exhaustively pleaded and

argued her case before the County Court at first instance.

      The applicant alleges that she has no available effective domestic

remedy for her complaints.  She was refused an injunction by the County

Court, in respect of which an appeal would have been without any prospect

of success given the state of the case-law at the time. The remedies

afforded in respect of torts such as nuisance do not extend to cases such

as her own where the conduct complained of falls short of an actionable

tort and where there is no actual physical or psychiatric damage

suffered, as opposed to emotional stress and trauma. Further, the case-

law of the courts in this area is unclear and self-contradictory and, she

submits, does not reveal any recognition of the existence of a tort of

harassment. She contends that she should be provided with a single

coherent remedy in respect of the harassment which she suffers and that

at best domestic law offers piecemeal and highly doubtful solutions.

      The Commission recalls that Article 26 (Art. 26) of the Convention

only requires the exhaustion of such remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress.  An applicant does not need to exercise

remedies which, although theoretically of a nature to constitute

remedies, do not in reality offer any chance of redressing the alleged

breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

      It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec.

11.12.82, D.R. 30 p. 96, at p. 102).

       It appears to the Commission that there are well-established

remedies under domestic law which would have provided the possibility of

obtaining damages and/or injunctive relief in respect of the applicant's

specific complaints which allege that Mr. B. has entered her home or

attempted to interfere with her property or assaulted her. While the

Commission notes that the proceedings in the County Court included claims

in respect of assault and trespass, it is apparent that these claims were

introduced in respect of incidents which were too remote in time for the

Court to exercise its discretion in issuing an injunction. Insofar as

incidents relating to her property have taken place following the court

proceedings, the Commission notes that the applicant has not sought

relief in the courts alleging trespass to property or nuisance.

      Insofar as the applicant complains in more general terms of the

campaign of harassment, ie. actions falling short of assault, trespass

or nuisance, the Commission notes that English law at the present time

does not appear expressly to acknowledge the existence of a tort of

harassment as such. It is evident however that an action lies in respect

of conduct calculated to impair health and having that effect. The Court

of Appeal has granted or upheld interlocutory injunctions restraining

such conduct where a plaintiff alleged that she was being subjected to

a campaign of harassment by a former male friend. Moreover, in

Khorasandjian v. Bush, the majority of the Court of Appeal adopted the

approach of regarding a defendant's conduct as a whole and restraining

conduct which risked leading to the impairment of health.

      The applicant contends that the County Court refused to grant her

an interlocutory injunction in the light of the Court of Appeal decision

in Patel v. Patel, which is authority for the proposition that an

injunction cannot be granted in the absence of actual tortious acts being

committed, or the likelihood that such acts would be committed. It does

not appear however that the County Court was referred to the line of

authority establishing the existence of a remedy for conduct calculated

to impair health. Further, the applicant took no step with a view to

appealing against the refusal of the County Court to grant injunctive

relief, neither applying for legal aid nor proceeding with an appeal. The

Commission notes that, given the applicant's allegations of continuing

harassment, it also remains open for her to issue fresh proceedings.

      While, as the applicant points out, there is no certainty that an

appeal, given the conflicting decisions of the Court of Appeal, would

have succeeded, the Commission's case-law establishes that where there

is doubt as to the prospects of success in a particular case it should

be submitted to the domestic courts for resolution (see eg. No. 6271/73,

Dec. 13.5.76, D.R. 6 p. 62). Further, in a common law system, where the

courts extend and develop principles through case-law, it is generally

incumbent on an aggrieved individual to allow the domestic courts the

opportunity to develop existing rights by way of interpretation (see eg.

No. 18760/91, Dec. 1.12.93, to be published in D.R.).

      Consequently, the Commission concludes that the present applicant

had, in relation to her complaints under Article 1 of Protocol No. 1

(P1-1), available to her remedies which could have provided her with

effective relief and, in relation to her complaints under Article 8

(Art. 8), the possibility of appealing against the adverse first instance

decision in the County Court, which she did not avail herself of.

Moreover, the Commission does not find on the facts of this case that the

lack of one single remedy for her complaints rendered these avenues of

redress impractical or ineffective for the purposes of Article 26

(Art. 26) of the Convention.

      It follows that the applicant has not complied with the requirements

of Article 26 (Art. 26) of the Convention and that this part of the

application must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2.    The applicant further submits that she has no remedy for her

complaints as required by Article 13 (Art. 13) of the Convention.

      Article 13 (Art. 13) of the Convention provides:

      "Everyone whose rights and freedoms as set forth in this Convention

      are violated shall have an effective remedy before a national

      authority notwithstanding that the violation has been committed by

      persons acting in an official capacity."

      The Commission recalls however that it has rejected the applicant's

substantive complaints under Article 8 (Art. 8) of the Convention and

under Article 1 of Protocol No. 1 (P1-1) to the Convention as failing to

comply with the requirement of exhaustion of domestic remedies under

Article 26 (Art. 26) of the Convention. The Commmission found that the

applicant had failed to avail herself of remedies or the possibility of

appealing which could have furnished her with effective redress for her

complaints. In these circumstances, the Commission finds that her

complaints under Article 13 (Art. 13) of the Convention must be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission     President of the Commission

      (M. de SALVIA)                        (C.A. NØRGAARD)

 

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