Capturing the stalker in words

"Stalking" has suddenly become an in-vogue legal term. It only emerged relatively recently, but it is now rare to pick up a newspaper without finding it applied to some legal action or other.

One of the definitive rulings to emerge on the subject – and one in which the case began before the term was even being widely used – came in the recent High Court case in which college lecturer Robert Fine was awarded £5,000 damages by Mr Justice Thompson after he complained of being stalked by one of his female students.

In what is viewed as the first case of its kind to reach the civil courts, 50-year-old Dr Fine sought damages and an injunction preventing the student, Mrs Eileen McLardy, continuing with her campaign against him. And although the whole question of stalking is currently in the legal melting pot, Mr Justice Thompson did not shrink from branding what had been happening to Dr Fine by the name it had already been given throughout the media.

He said that the actions of Mrs McLardy were "wholly inexcusable" and added that in his judgment they "clearly amount to stalking".

Dr Fine's solicitor, Andrew Wooley, a partner in Leamington firm Wright Hassall & Co, who is shortly to set up his own Stratford-on-Avon and London-based specialist divorce practice, says: "So far as I am aware, this is the first case where a judge has made a proper attempt to define stalking in the civil courts and it is the first case where damages have been awarded and directed where the word 'stalking' is used. It is an important step in this area of litigation."

The judgment, which followed in court legal argument from Dr Fine's counsel, Ashley Underwood, has helped to bring together what in the past have been fragmented causes of action in such circumstances. Wooley says this has helped pave the way for claims by others who, previously, might justifiably have been advised by solicitors that they did not have grounds to sue.

Such advice, hitherto, would have been based on the absence of provable violence against the complainant and a lack of trespass allegations to the homes of the complainant. In the past, these factors have been viewed as major obstacles in the way of those seeking to obtain injunctions in this sort of case.

When Wooley took the case on, the term "stalking" had yet to be used in this context. However, it has now become a legal term and it became obvious, from the point of view of judicial recognition and definition of the term, that this case was going to be an important one which could break new ground.

It did so because it was a decision in which the judge accepted use of the term and defined it. Furthermore, it was a decision which has now opened the field for lawyers to look at complaints such as those advanced by Dr Fine without necessarily having to go into detailed investigation of the mixture of torts, such as trespass and assault, which previously would have had to be proved.

However, Wooley states that, in his view, the judge has not, as some may have assumed, effectively created a separate tort. Rather he has brought the appropriate torts together by using stalking as a collective term. He believes that, as a result, we can expect to see more litigation such as that brought by Dr Fine.