Since the tort of nuisance is a tort directed against the plaintiff's enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the land in question, or even as a licensee with exclusive possession of the land (see Newcastle-under-Lyme Corporation v. Wolstanton Ltd. [1947] Ch. 92, 106-108, per Evershed J.); though a reversioner may sue in respect of a nuisance of a sufficiently permanent character to damage his reversion. It was however established, in Foster v. Warblington Urban District Council [1906] 1 K.B. 648, that, since jus tertii is not a defence to an action of nuisance, a person who is in exclusive possession of land may sue even though he cannot prove title to it. That case was concerned with a nuisance caused by the discharge of sewage by the defendant council into certain oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, which belonged to the lord of the manor. The plaintiff excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. It was held by the Court of Appeal that he could sue the defendant Council in nuisance, notwithstanding that he could not prove his title. Stirling L.J. said (at pp. 673-674):

 "I think, therefore, that, as against a private individual, the plaintiff would have a right of action, and I do not think that this case can be governed by the decision in the case of Corporation of Truro v. Rowe. There the contest arose between the owners of the foreshore and a person who claimed simply to be availing himself of a public right of fishing. Here the contest arises, in my view, between the person who is in occupation of a portion of the foreshore and a wrongdoer. Whether the plaintiff would be able to resist the claims of the owner of the foreshore, whoever he may be, or the owner of a several fishery, if such fishery exists, or of a member of the public exercising a right of fishery, if there be such a right in the present case, seems to me immaterial for the purposes of this case. . . ."

This decision was followed and applied by Mahon J. in Paxhaven Holdings Ltd. v. Attorney-General [1974] 2 N.Z.L.R. 185. He said (at p. 189):

 "In my opinion, however, the matter is clear in principle. In an action for nuisance the defence of jus tertii is excluded, and it is no answer for the respondent to contend in the present case that the nuisance was committed on an area of land mistakenly included in the grant of lease to the appellant from its landlord. De facto possession is sufficient to give the appellant his remedy: Foster v. Warblington Urban District Council [1906] 1 K.B. 648."

I have referred to this point at some length because I will have to return to it at a later stage.

      Subject to this exception, however, it has for many years been regarded as settled law that a person who has no right in the land cannot sue in private nuisance. For this proposition, it is usual to cite the decision of the Court of Appeal in Malone v. Laskey [1907] 2 K.B. 141. In that case, the manager of a company resided in a house as a licensee of the company which employed him. The plaintiff was the manager's wife who lived with her husband in the house. She was injured when a bracket fell from a wall in the house. She claimed damages from the defendants in nuisance and negligence, her claim in nuisance being founded upon an allegation, accepted by the jury, that the fall of the bracket had been caused by vibrations from an engine operating on the defendants' adjoining premises. The Court of Appeal held that she was unable to succeed in her claim in nuisance. Sir Gorell Barnes P. said, at p. 151:

 "Many cases were cited in the course of the argument in which it had been held that actions for nuisance could be maintained where a person's rights of property had been affected by the nuisance, but no authority was cited, nor in my opinion can any principle of law be formulated, to the effect that a person who has no interest in property, no right of occupation in the proper sense of the term, can maintain an action for a nuisance arising from the vibration caused by the working of an engine in an adjoining house. On that point, therefore, I think that the plaintiff fails, and that she has no cause of action in respect of the alleged nuisance."

Fletcher Moulton L.J. said (at pp. 153-154):

 "So far as the plaintiff's case is based upon nuisance, the contention on her behalf appears to me to be supported by no authority. Witherby & Co. were the tenants and occupiers of these premises, and if the premises had been injured or the enjoyment of them interfered with by the vibration it was open to them to take any one of three courses--they might come to the courts for an injunction to stop the vibration, or they might simply have tolerated it, or they might have authorised its continuance either gratuitously or for a valuable consideration. A person in the position of the plaintiff, who was in the premises as a mere licensee, had no right to dictate to Witherby & Co. which course they should take, and they seem to have voluntarily permitted the vibration to continue. Indeed, if it is permissible to conjecture, I have very little doubt that the proximity of the engine was by no means an unmixed evil to them, for it may well have affected the amount of rent paid by them for the premises. But, whether that be so or not, it was a matter entirely for the tenant, and a person who is merely present in the house cannot complain of a nuisance which has in it no element of a public nuisance."

I should add that an alternative claim by the plaintiff in negligence also failed, though that claim would have succeeded today: (see A.C. Billings & Sons Ltd. v. Riden [1958] A.C. 240).

      The decision in Malone v. Laskey on nuisance has since been followed in many cases, of which notable examples are Cunard v. Antifyre Ltd. [1933] 1 K.B. 551 and Oldham v. Lawson (No. 1) [1976] V.R. 654. Recently, however, the Court of Appeal departed from this line of authority in Khorasandjian v. Bush [1993] Q.B. 727, a case which I must examine with some care.

      The plaintiff, a young girl who at the time of the appeal was 18, had formed a friendship with the defendant, then a man of 28. After a time the friendship broke down and the plaintiff decided that she would have no more to do with the defendant, but the defendant found this impossible to accept. There followed a catalogue of complaints against the defendant, including assaults, threats of violence, and pestering the plaintiff at her parents' home where she lived. As a result of the defendant's threats and abusive behaviour he spent some time in prison. An injunction was granted restraining the defendant from various forms of activity directed at the plaintiff, and this included an order restraining him from "harassing, pestering or communicating with" the plaintiff. The question before the Court of Appeal was whether the judge had jurisdiction to grant such an injunction, in relation to telephone calls made to the plaintiff at her parents' home. The home was the property of the plaintiff's mother, and it was recognised that her mother could complain of persistent and unwanted telephone calls made to her; but it was submitted that the plaintiff, as a mere licensee in her mother's house, could not invoke the tort of private nuisance to complain of unwanted and harassing telephone calls made to her in her mother's home. The majority of the Court of Appeal (Peter Gibson J. dissenting) rejected this submission, relying on the decision of the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62. In that case, the Appellate Division not only recognised that the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home, but also that the same remedy was open to his wife who had no interest in the property. In the Court of Appeal Peter Gibson J. dissented on the ground that it was wrong in principle that a mere licensee or someone without any interest in, or right to occupy, the relevant land should be able to sue in private nuisance.

      It is necessary therefore to consider the basis of the decision in Motherwell v. Motherwell that a wife, who has no interest in the matrimonial home where she lives, is nevertheless able to sue in private nuisance in respect of interference with her enjoyment of that home. The case was concerned with a claim for an injunction against the defendant, who was the daughter of one of the plaintiffs, the other two plaintiffs being her brother and sister-in-law. The main ground of the complaint against the defendant was that, as a result of a paranoid condition from which she suffered which produced in her the conviction that her sister-in-law and her father's housekeeper were inflaming her brother and her father against her, she persistently made a very large number of telephone calls to her brother's and her father's homes, in which she abused her sister-in-law and the housekeeper. The Appellate Division of the Alberta Supreme Court, in a judgment delivered by Clement J.A., held that not only could her father and brother, as householders, obtain an injunction against the defendant to restrain this activity as a private nuisance, but so also could her sister-in-law although she had no interest in her husband's property. Clement J.A. said, at p. 78:

 "Here we have a wife harassed in the matrimonial home. She has a status, a right to live there with her husband and children. I find it absurd to say that her occupancy of the matrimonial home is insufficient to found an action in nuisance. In my opinion she is entitled to the same relief as is her husband, the brother."

This conclusion was very largely based on the decision of the Court of Appeal in Foster v. Warblington U.D.C. [1906] 1 K.B. 648, which Clement J.A. understood to establish a distinction between "one who is 'merely present'" and "occupancy of a substantial nature", and that in the latter case the occupier was entitled to sue in private nuisance. However Foster does not in my opinion provide authority for the proposition that a person in the position of a mere licensee, such as a wife or husband in her or his spouse's house, is entitled to sue in that action. This misunderstanding must, I fear, undermine the authority of Motherwell on this point; and in so far as the decision of the Court of Appeal in Khorasandjian v. Bush is founded upon Motherwell it is likewise undermined.

      But I must go further. If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother's or her husband's house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law, especially when, as in the case in question, the step so taken was inconsistent with another decision of the Court of Appeal, viz. Malone v. Laskey, by which the court was bound. In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy. For these reasons, I do not consider that any assistance can be derived from Khorasandjian v. Bush by the plaintiffs in the present appeals.

      It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally however, as Foster shows, this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue.

      The question therefore arises whether your Lordships should be persuaded to depart from established principle, and recognise such a right in others who are no more than mere licensees on the land. At the heart of this question lies a more fundamental question, which relates to the scope of the law of private nuisance. Here I wish to draw attention to the fact that although, in the past, damages for personal injury have been recovered at least in actions of public nuisance, there is now developing a school of thought that the appropriate remedy for such claims as these should lie in our now fully developed law of negligence, and that personal injury claims should be altogether excluded from the domain of nuisance. The most forthright proponent of this approach has been Professor Newark, in his article in (1949) 65 L.Q.R. 480 from which I have already quoted. Furthermore, it is now being suggested that claims in respect of physical damage to the land should also be excluded from private nuisance: see, e.g., the article by Mr. Conor Gearty on The Place of Private Nuisance in a Modern Law of Torts in [1989] C.L.J. 214. In any event, it is right for present purposes to regard the typical cases of private nuisance as being those concerned with interference with the enjoyment of land and, as such, generally actionable only by a person with a right in the land. Characteristic examples of cases of this kind are those concerned with noise, vibrations, noxious smells and the like. The two appeals with which your Lordships are here concerned arise from actions of this character.