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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burris v Azadani [1995] EWCA Civ 50 (27 July 1995) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1995/50.html Cite as: [1995] EWCA Civ 50

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF
HIS HONOUR JUDGE COPLEY

		Royal Courts of Justice Strand, London WC2
		27th July 1995

1. THE MASTER OF THE ROLLS: Mr Behrooz Azadani, the appellant in this court, was the subject of an injunction granted in ordinary common law proceedings by the County Court. One of the terms of that injunction was that he should not go within 250 yards of a specified address. He did so. The breach was proved and he was committed to prison. He submits on this appeal that the term in question was one which the judge was not entitled to impose or should not have imposed. He seeks to be released from prison on one or other of those grounds.
2. Miss Burris is a divorced woman living with her two children, now aged about 10 and 8, at 83 Mandrake Road, London SW17. In September 1992 she and her children began to attend classes in martial arts at the Balham Leisure Centre. Mr Azadani was one of their instructors and they became acquainted with him in that way. Mr Azadani sought a close and intimate relationship with Miss Burris. This was something she did not want and did her best to resist. Unfortunately, Mr Azadani was unwilling to respect her wishes. He made a number of uninvited visits to her house, often in the middle of the night, and refused to leave. He made nuisance telephone calls to her on repeated occasions. He made threats to commit suicide and threats against her. He also made threats to slash the tyres of her car, and the tyres of her car were thereafter slashed, although she cannot state positively that he was responsible.
3. She was understandably very worried about the safety of her children and herself. It is unnecessary to recite the history which gave rise to the proceedings in detail, since there has been no dispute concerning Miss Burris's account, which discloses an intolerable history of harassment and molestation.
4. On 28 January 1994 Miss Burris applied ex parte to the district judge at Wandsworth County Court for grant of an interlocutory injunction. Her application was supported by an affidavit of the same date, exhibiting a summary of the history on which she relied. It is evident that the application was made in some haste, and no proceedings had at that stage been issued.
5. On Miss Burris's undertaking to file particulars of claim within 7 days leave was given to issue a summons. An injunction was also granted in these terms:

"That the defendant be restrained and an injunction is hereby granted restraining the defendant whether by himself, his servants or agents or any of them, or otherwise howsoever from: -

(a) Assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff whether directly or indirectly to the [plaintiff, the plaintiff's children and the plaintiff's friend].

(b) Making any communication to the plaintiff, the plaintiff's [children and the plaintiff's friend] whether in writing or orally, whether by telephone or otherwise howsoever save that he may send written communication to her solicitors;

(c) From coming or remaining with [in] 250 yards of the plaintiff's home address of 83 Mandrake Road, London SW17 7PX until after the trial of this action or further order."

6. Mr Azadani was given liberty to apply to discharge or vary that order on 3 days' written notice to Miss Burris's solicitors, but he took no steps to make application. The order was to remain in force until the trial of the action or further order. It was duly served on Mr Azadani.
7. It was alleged that Mr Azadani breached this order by visiting 83 Mandrake Road. On one occasion he was said to have taped (or caused to be taped) a letter and three dead roses to Miss Burris's front door. On a second occasion he was said to have delivered a letter by pushing it through her letterbox. These alleged breaches came before a recorder sitting in the Wandsworth County Court. The recorder made no order on that occasion, but reprimanded Mr Azadani and warned him that if further breaches occurred he was at risk of being sent to prison.
8. For a time it seems that Mr Azadani complied with the terms of the injunction. But on 26 April 1995 he appeared before His Honour Judge Walker in the Wandsworth County Court and a number of breaches of the injunction were proved. Two of those breaches were those which had earlier been considered by the recorder. The remainder involved: a call at Miss Burris's house by Mr Azadani's sister on 18 December 1994; the delivery (by an agent) of a cassette containing allegations by Mr Azadani against Miss Burris on 26 December 1994; the leaving of messages on Miss Burris's answerphone in January and February of 19 95 and the posting of a letter through her letterbox; and a visit by Mr Azadani to Miss Burris's house on 4 April 1995, when he put a note through the letterbox and left parcels on the doorstep for Miss Burris's children. The judge found all these breaches to be proved, and ordered that Mr Azadani be committed to prison for 8 weeks for each of the breaches. These sentences were ordered to be concurrent, and the sentences were suspended until 26 October 1996.
9. Unfortunately for Mr Azadani, further breaches were alleged against him. These were investigated by His Honour Judge Copley at Wandsworth County Court on 12 July 1995. The first alleged breach was that at 7.30am on 6 July 1995 Mr Azadani had cycled along Mandrake Road past Miss Burris's house (and therefore within 250 yards of it) . The second alleged breach was that at 00.42am on 7 July 1995 Mr Azadani had again cycled along Mandrake Road past Miss Burris's house. On neither occasion did Miss Burris see Mr Azadani herself, and at the trial Mr Azadani contended that he had not been in Mandrake Road at the times of these alleged visits. There was, however, evidence to support Miss Burris's complaint, and the judge found the breaches proved. He found as a fact that when told of Mr Azadani's presence outside her house Miss Burris had been so frightened that she shook physically. The judge ordered Mr Azadani to be committed to prison for 4 weeks for each of these two breaches (concurrently), and also ordered that he should serve the suspended sentence of 8 weeks. Mr Azadani therefore became subject to an immediate sentence of 12 weeks' imprisonment.
10. Before Judge Copley it was argued that the district judge had had no power to impose the 250 yard term in the injunction which he granted on 2 8 January 19 94, and that therefore there was no jurisdiction to commit Mr Azadani to prison for breach of that term. The judge rejected that argument. It is, however, clear that whereas the earlier breaches complained of had been clear breaches of terms (a) and (b) of the injunction of 28 January 1994, the breaches of which Mr Azadani was found guilty by Judge Copley related only to term (c) of the injunction. That was what gave force to the argument which was deployed before Judge Copley, and which has to some extent been repeated in this court.
11. Counsel for Mr Azadani naturally relied strongly on the commentary on Order 13 rule 6 of the County Court Rules to be found in the 1995 County Court Practice at page 237:

"There is no power at common law to grant an injunction restraining a defendant from entering an "exclusion zone" outside the plaintiff's premises even where the action is for trespass coupled with a claim for an injunction against molestation: Patel v Patel [1988] 2 FLR 179, [1988] Fam Law 213, CA."

12. This statement was fortified by a passage in Emergency Remedies and Procedures, Second Edition, by Judge Nigel Fricker QC and others:

"Orders to exclude the defendant from an area surrounding the plaintiff's home are not available

In Patel v Patel [1988] 2 FLR 179, the Court of Appeal approved the deletion from an injunction of an order excluding the defendant from an area surrounding the plaintiff's premises. It is submitted that, apart from the statutory power to make an exclusion order in relation to a spouse or co-habitant, provided by section 1 (1) (d) of the Domestic Violence and Matrimonial Proceedings Act 1976, there is no jurisdiction to grant an injunction to restrain a defendant from exercising a public right of way or peacefully visiting premises to which he is invited, however close to the home of the plaintiff or applicant the highway or premises may be. See also Pidduck v Molloy."

13. It is plain that respected authorities regard "exclusion zone" terms, save where specifically authorised by statute, as impermissible.
14. Section 38 of the County Courts Act 1984 provides:

" (1) Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court".

15. The County Court Remedies Regulations 1991 restrict the grant of Anton Piller orders and Mareva injunctions by county courts, but otherwise the power of the county court to grant an interlocutory injunction is the same as that of the High Court. The power of the High Court is found in section 37 (1) of the Supreme Court Act 1981, which provides:

" (1) 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".

16. It is of course quite clear that the court cannot properly grant an injunction unless the plaintiff can show at least an arguable cause of action to support the grant, but subject to this overriding requirement section 37, as has often been observed, is cast in the widest terms.
17. If an injunction may only properly be granted to restrain conduct which is in itself tortious or otherwise unlawful, that would be a conclusive objection to term (c) of the 28 January 1994 injunction, since it is plain that Mr Azadani would commit no tort nor otherwise act unlawfully if, without more, he were to traverse Mandrake Road without any contact or communication with Miss Burris, exercising his right to use the public highway peacefully in the same way as any other member of the public. I do not, however, think that the court's power is so limited. A Mareva injunction granted in the familiar form restrains a defendant from acting in a way which is not, in itself, tortious or otherwise unlawful. The order is made to try and ensure that the procedures of the court are in practice effective to achieve their ends. The court recognises a need to protect the legitimate interests of those who have invoked its jurisdiction. In Khorasandjian v Bush [1993] QB 727 at 732F Dillon LJ said:

"It is, of course, not in dispute that an interlocutory injunction can, in an appropriate case, be granted quia timet before an actual tort has been committed against the plaintiff. It is also clear that the form of an interlocutory injunction does not have to follow slavishly the form of the substantive relief which would be likely to be granted at the trial if the plaintiff succeeds. In Fresh Fruit Wales Limited v Halbert, The Times, 2 9 January 1991; Court of Appeal (Civil Division) Transcript No. 18 of 1991, decided by this court on 18 January 1991, Parker LJ said:

"If the situation which arises at the date when the interlocutory order is sought is such that the interest of the parties can in justice best be guarded by some order which would not be appropriate at the end of the trial, there is no reason whatever why the judge should not do so."

Instances which spring to mind are orders for the preservation of some property in safe custody until trial, and orders to preserve the status quo until trial, when on American Cyanamid principles (American Cyanamid Co v Ethicon Limited [1975] AC 396) it is not possible to resolve the substantive dispute between the parties on an interlocutory application."

18. It would not seem to me to be a valid objection to the making of an "exclusion zone" order that the conduct to be restrained is not in itself tortious or otherwise unlawful if such an order is reasonably regarded as necessary for protection of a plaintiff's legitimate interest.
19. It is accordingly necessary to consider whether Patel v Patel [1988] 2 FLR 179 restricts the power of the court to make such an order, as has been suggested. The case concerned a family dispute between a father-in-law, the plaintiff, and his son-in-law, the defendant. The view was plainly taken both by the judge in the county court and by the Court of Appeal that the seriousness of the dispute had been very much exaggerated by the plaintiff. He started his action in August 1986 when an injunction was made against the defendant in these terms:

"(1) [The] defendant be restrained by himself, his servants or agents from assaulting, molesting or otherwise interfering with the plaintiff or communicating with the plaintiff other than through solicitors.

(2) The defendant be restrained from trespassing upon the plaintiff's property ... or from approaching within 50 yards of [it]."


 


20. The defendant breached this injunction and in November 1986 was committed to prison for 14 days. In January 1987 he was again found to have breached the injunction, but on this occasion he was only fined. On 24 April 1987 the defendant appeared before the court for the third time to answer allegations that he had again breached the terms of the injunction. On this occasion the judge did not regard the defendant's conduct as at all serious. He ordered him to pay a fine of £25. He amended the terms of the existing injunction, so that the defendant was henceforward restrained only from assaulting or molesting the plaintiff or trespassing on his property. He made no order for payment of costs by the defendant. The plaintiff appealed, contending that an immediate or suspended term of imprisonment would have been an appropriate penalty, and further contending that the judge had erred in altering the terms of the original injunction. Giving the first judgment in the Court of Appeal, May LJ said (at page 180 H):

"However it must be made clear, at any rate in my opinion, 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 in likely to be committed. A number of the allegations in the various affidavits that are before us do not constitute a tort, nor give any reason for thinking that a tort might be committed, and I have no doubt that it was for this reason that the judge thought it proper to limit the terms of the original injunction of 20 August 1986, in particular removing from it the restraint on the son-in-law from approaching within 50 yards of his father-in-law's house. Unless an actual trespass is committed or is more than likely to be committed, it does not seem to me that merely to approach to within 50 yards of a person's house does give a cause of action which may be restrained by an injunction in those terms. In these circumstances I do not think that the learned judge is to be criticised at all for restricting the original injunction in the way that he did".

21. Waterhouse J, agreeing with the orders proposed by May LJ and with his judgment, added:

"The essence of the appellant's complaint is that he has been the victim of repeated harassment since May 1985, but in the present state of the law there is no tort of harassment."

22. Taking the view that the plaintiff's complaints were a storm in a teacup, the Court of Appeal in Patel were understandably and very properly concerned to ensure that no unnecessary restraint was imposed on the ordinary freedom of the defendant. The view was plainly taken, in agreement with the county court judge, that the "exclusion zone" order was unnecessary for the reasonable protection of the plaintiff's interests. I do not, however, understand May LJ to have held that such an order was improper even in a case where the commission of a tort was reasonably to be apprehended and where an "exclusion zone" order was reasonably judged to be necessary for protection of the plaintiff as the potential victim of tortious conduct. Nor, in the light of later authority, can the view be upheld that there is no tort of harassment. On the facts as they were understood to be, the court's decision in Patel was in my view not only understandable but plainly correct. I do not, however, think that the court intended to lay down any general principle or believed that it had done so. The court could scarcely have embarked on such an exercise without reference to the statutory provisions from which the jurisdiction of the county court is derived.
23. In Khorasandjian v Bush [1993] QB 727 the plaintiff and the defendant had previously been friends, although they had never co-habited. Their relationship had broken down, but the defendant had been quite unable to accept that it was over. The plaintiff made a number of complaints against the defendant: that he had assaulted her; that he had threatened violence; that he had abused her; that he had persecuted her with telephone calls, and not only her but her mother, her boyfriend, and her boyfriend's mother; that he had converted her property; and that he had damaged her property. For the defendant it was accepted on appeal that the court could properly restrain him from assaulting, or attempting to assault, or using violence against, or interfering with the property of, the plaintiff. But it was argued that the plaintiff could not complain of persistent unwanted telephone calls since she had no real property interest in her parents' house, and it was accordingly submitted that the judge had no jurisdiction to restrain the defendant from "harassing, pestering or communicating with" the plaintiff, because those words did not reflect any tort known to the law and an interlocutory injunction could only be granted to protect a legal right of the plaintiff. In a judgment with which Rose LJ agreed, but from which Peter Gibson J dissented, Dillon LJ rejected these suggested restrictions on the jurisdiction of the court. He regarded it as "ridiculous" if the law was that the making of deliberately harassing and pestering telephone calls to a person was only actionable in the civil courts if the recipient of the calls happened to have the freehold or a leasehold interest in the premises in which he or she had received the calls. If the wife of an owner of premises was, as a Canadian court had held, entitled to sue in respect of harassing telephone calls, he could not see why that should not also apply to a child living at home with her parents. He accepted that damage was a necessary ingredient of the tort of private nuisance but observed:

"So far as the harassing telephone calls are concerned, however, the inconvenience and annoyance to the occupier caused by such calls, and the interference thereby with the ordinary and reasonable use of the property are sufficient damage. The harassment is the persistent making of the unwanted telephone calls, even apart from their content; if the content is itself as here threatening and objectionable, the harassment is the greater".

24. Having referred to earlier authority, Dillon LJ held that it did not preclude the court from taking a wider view of the telephone harassment under the heading of private nuisance in the light of the interference with the ordinary and reasonable enjoyment of property, and also that verbal threats made orally to a person could be actionable if they caused illness. He found on the facts an obvious risk that the cumulative effect of continued and unrestrained harassment such as the plaintiff had undergone could subject the plaintiff to such stress as would be likely to cause illness.
25. In that case no "exclusion zone" order was at any stage imposed upon the defendant, and the court was not therefore called upon to consider the legitimacy of such an order. The court was, however, referred to Patel v Patel, and it regarded the triviality of the breaches established against the defendant in that case as "good warrant" for the county court judge's revocation of the earlier "exclusion zone" order. With reference to the more general observation that there was no tort of harassment, Dillon LJ pointed out that the court in Patel had approved an injunction which restrained the defendant from molesting the plaintiff. I do not understand the court in Khorasandjian to have interpreted Patel as forbidding an "exclusion zone" order in a proper case, and certainly the court did not itself make any ruling to that effect.
26. Reference should perhaps be made to Pidduck v Molloy [1992] 2 FLR 202. The parents of a child, who had lived together for some years, separated. The defendant then behaved towards the plaintiff in a violent, aggressive and hostile manner. An injunction was granted which restrained the defendant from approaching the plaintiff in the street. On reconsideration, the county court judge considered the terms of the injunction to be too wide. He said:

"As pointed out to defendant counsel, the law is not restricted to restraining mere acts of assault or threats of assault or direct trespass and the court is entitled to make any order which prevents or forbids the defendant from committing a tortious act to the personal detriment of the plaintiff, in particular her own personal protection or peace of mind.

These injunctions are common in pestering cases although I do accept that the wording of the original order goes too far."

27. The learned judge substituted an order that the defendant should not speak to the plaintiff. On appeal to the Court of Appeal this term also was the subject of challenge. In the event, the terms of a new injunction were agreed and this term was modified so as to restrain the defendant from speaking to the plaintiff "in an intimidatory, threatening or abusive manner" . It is to be remembered that as the parent of a child the defendant could have had a legitimate reason for wishing to speak to the plaintiff. It is also worthy of note that the terms of the injunction were by agreement modified so as to restrain the defendant from "entering the curtilage of the plaintiff's home without her consent or loitering within the vicinity thereof". The court made no criticism of the passage from the judgment of the county court judge which I have quoted.
28. Neither statute nor authority in my view precludes the making of an "exclusion zone" order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.
29. Ordinarily, the victim will be adequately protected by an injunction which restrains the tort which has been or is likely to be committed, whether trespass to the person or to land, interference with goods, harassment, intimidation or as the case may be. But it may be clear on the facts that if the defendant approaches the vicinity of the plaintiff's home he will succumb to the temptation to enter it, or to abuse or harass the plaintiff; or that he may loiter outside the house, watching and besetting it, in a manner which might be highly stressful and disturbing to a plaintiff. In such a situation the court may properly judge that in the plaintiff's interest -and also, but indirectly, the defendant's - a wider measure of restraint is called for.
30. In the present case, counsel for Mr Azadani contended that paragraph (c) , the "exclusion zone" term, added nothing to terms (a) and (b) , and was therefore unnecessary. But he addressed no argument to the facts, and did not contend that the exclusion of Mr Azadani from the vicinity of Miss Burris's house would not minimise the risk of further incidents. He also, realistically, accepted that having made no application to challenge or modify the terms of the injunction Mr Azadani was bound to comply with it. As Lord Donaldson of Lymington MR observed in Johnson v Walton [1990] 1FLR 350 at 352:

"It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself and it has to be obeyed whether or not it should have been granted or accepted in the first place".

(See also Isaacs v Robertson [1985] AC 97, at 102-103 and M v Home Office [1992] QB 270 at 298-299.)

31. Recognition of this important principle led counsel for Mr Azadani to submit that the breaches of which Mr Azadani was convicted by Judge Copley on 12 July 1995 were not directed at the plaintiff, as the earlier breaches had been, and so should not attract the penalty imposed, but suspended, for those more serious breaches. I see force in this submission. The breaches of 6 and 7 July 1995 were deliberate, and committed with full knowledge of the order. They were a contumacious defiance of the court order and merited a sentence of 28 days' immediate imprisonment. But Mr Azadani should receive some credit for not repeating his earlier breaches, which were much more directly aimed at the plaintiff. For this reason the court ordered, at the conclusion of the appeal, that the judge's order should be varied by setting aside the order that the sentence of 8 weeks' imprisonment, previously suspended, should be served at once.
32. In the result, the injunction granted on 28 January 1994 will stand unaltered. The sentence of 4 weeks' imprisonment will stand. But the sentence of 8 weeks' imprisonment imposed on 26 April 1995 will remain suspended until 26 October 1996. That sentence will not be served unless Mr Azadani again breaches the order.
33. LORD JUSTICE MILLETT: I agree.
34. LORD JUSTICE SCHIEMANN: I agree with the judgment delivered by the Master of the Rolls. As he points out, there are in these cases two interests to be reconciled - that of the Plaintiff not to be harassed and that of the Defendant to be allowed to move freely along the highway. An exclusion zone order interferes with the latter in order to secure the former. On its face it forbids what are lawful actions. The Defendant has rendered himself liable to such an order because of his previous harassing behaviour. Nonetheless a Judge imposing such an order must be careful not to interfere with the Defendant's rights more than is necessary in order to protect the Plaintiff's.
35. I draw attention to the fact that in the present case we are dealing with an interlocutory not a final injunction. Moreover the injunction was granted ex parte with liberty to Mr Azadani to apply to discharge it. So the interference with Mr Azadani's liberty to use the highway was merely temporary and the judge left himself opportunity for reconsideration after having heard Mr Azadani. A judge faced with an application for a permanent injunction is faced with a different problem. As presently advised I consider that any such injunction should include a liberty to apply so that the Defendant should not be precluded from exercising his normal rights if the fears which gave rise to the imposition of the injunction no longer have any basis in fact sufficient to justify its continuation.