Finding a cause of action to support a claim for an injunction in commercial situations is usually not difficult.
Advising a client who is being harassed – perhaps being "stalked" or having their offices picketed by someone bearing a grudge – on their cause of action is not so straightforward.
While media or sports personalities are particularly vulnerable, invasion of privacy in one form or another affects many not in the public eye.
One problem is where a person who is not apparently seriously mentally ill subjects their "victim" to a subtle, non-violent, but persistent course of harassment. This may take the form of 'haunting' the victim wherever they go. Such behaviour may be combined with obsessive (but possibly not obscene or malicious) letters, telephone calls and personal visits. This can cause considerable distress, combined with frustration at being unable to deal effectively with the problem.
In certain cases an injunction will be granted if the court is satisfied there is an appropriate underlying cause of action (say, trespass or nuisance) and the circumstances are sufficiently serious.
Because there is no recognised tort of harassment, legal principles may be strained in trying to find a suitable remedy: Dillon LJ and Rose LJ in Khorasandjian v Bush (1993) 3 WLR 476 came close to saying that there is such a tort.
The criminal law is likely soon to be strengthened by a new offence of causing intentional harassment, alarm or distress. However, the situation will be much improved if a new tort of harassment is enacted as proposed by the Lord Chancellor's Department in its Consultation Paper produced last July. The proposal will probably form part of a White Paper dealing primarily with the more contentious issue of regulation of the press: it remains to be seen when this White Paper will actually be published.
The law cannot provide a complete remedy for obsessive behaviour, but surely new powers are needed to allow the courts to play a more effective part in helping those whose life is being made intolerable, or whose business is being damaged, by such behaviour.
Robert Highmore is civil litigation partner at Radcliffes & Co, Westminster.