WHITESIDE v. THE UNITED KINGDOM
Doc ref: 20357/92 • ECHR ID: 001-2549
Document date: March 7, 1994
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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)