Tort law update: the remedy of self-help

Acting to give oneself justice without a court action is known, in legal jargon, as ‘self-help ’ or ‘self-redress’ . Jowitt’s dictionary of English law actually defines self-help as an act ‘by an injured party to obtain redress without recourse to a court’ .² The remedy is, therefore, extra-judicial ; it is also the oldest type of remedy and may be said to belong to the class of rights or remedies by operation of law, for example, self-defence in criminal law and in tort.

This article aims to help increase public awareness of the practice/remedy of self-help by noting not only how it is risky (and so does not enjoy judicial approval readily), but also when it is available; why people still choose to exercise it; and how they do so. In addition, the article broadly discusses self-help in the form of self-defence , in dealing with trespassing (by people and, for example, plants, animals, vehicles, etc) and in abating a nuisance.

Where the remedy is exercised unlawfully, ie, where its use results in the person exercising it violating the rights of another or breaking the criminal and/or civil law, that person is usually described as taking the law into their own hands (see, for example, R v Martin [2003] QB 1; [2001] EWCA Crim 2245, where a farmer shot a burglar as he was running away).

A more recent illustration of the misuse of the principle is in Flint v (1) Tittensor (2) Motor Insurers Bureau [2015] EWHC 466 (QB), where the claimant successfully sued the defendant in trespass to the person. In the early hours of the morning, the claimant, F, who had been out with friends but had become separated from them and whose mobile phone was out of charge, approached the defendant, T, who was then sitting in his car, which was parked outside a McDonald’s fast-food restaurant. F asked T if he could use his mobile phone on two separate occasions. According to F, T refused both requests in an aggressive manner, and after the second refusal F slammed his hand on the bonnet of T’s car, thereby denting it. T drove forward towards F and forced him onto the bonnet. T then reversed and again drove forward, shaking the wheel in order to throw F off. F suffered severe head injuries after falling to the ground.

[Self-help is an act] ‘by an injured party to obtain redress without recourse to a court’

In contrast, T’s story was that F approached him aggressively and challenged him to get out of his car. F put his hand down the front of his trousers causing T to believe that F had a knife. T edged the car forward without making any contact with F, a movement intended to shepherd F out of the way. F climbed onto the car bonnet and started punching the windscreen while screaming abuse and pulling at the windscreen wiper. T, genuinely feared for his life and in an attempt to dislodge F from the car bonnet, reversed before driving forward.

When the incident occurred, F, who suffered from attention deficit hyperactivity disorder and had a history of aggressive behaviour, had been drinking.

It was held, inter alia, that even though F had started the confrontation by behaving aggressively, T’s intentional application of virtually dangerous force to F clearly constituted battery. This was not justified by reasonable self-defence because T’s use of his car was an unreasonable and disproportionate act; his driving towards F was an offensive action, not a defensive one, since F’s behaviour had not caused T to fear for his life or that he was in danger of being subjected to really serious harm. Also, T’s statement that he believed that F had a knife was fabricated. So, T’s belief that it was necessary for him to defend himself by using force was unreasonable. This part of the court’s ruling is similar to the House of Lords’ decision in Ashley and another v Chief Constable of Sussex Police [2008] UKHL 25 to the effect that in a civil action - in contrast with criminal proceedings - a defendant’s belief that they were under attack must be both honest and reasonable. Therefore, T’s course of action was effectively taking the law into his own hands. He could simply have reversed away from F without doing anything else. However, he chose to drive towards him.

Another illustration of the unlawful exercise of the doctrine is R v Burns [2010] EWCA Crim 1023. Here, the appellant, having agreed to take a prostitute in his car to a secluded area on the understanding that he would return her to the starting point, decided to remove her forcibly from the car in that secluded area, thereby causing her actual bodily harm. The Court of Appeal upheld his conviction for actual bodily harm. The court held that the appellant did not act in private defence (ie, self-defence ) or public defence (ie, under Criminal Law Act (CLA) 1967 s3(1)) , and that self-help or recaption of property was not justified because the appellant could have regained exclusive possession of his car by returning the victim to the starting point.

A further illustration of the exercise of self-help leading to lawbreaking is Burton v Winters [1993] 1 WLR. Here, the defendants built a garage (on their property), but the garage encroached on the land of their neighbour, the plaintiff, by about 4.5 inches. The plaintiff sued her neighbours for trespass and nuisance, and sought a mandatory injunction to compel them to remove the encroachment. The claim for an injunction was refused by the court, which instead granted a declaratory judgment and adjourned the claim for damages to enable a valuation to be made about how much the plaintiff’s property had fallen in value as a result of the encroachment. However, the plaintiff was impatient and disobedient to the court: she decided to exercise self-help , and so trespassed on the defendants’ land and built a brick wall in front of their garage. An injunction was issued against the plaintiff, but she ignored it; she also ignored subsequent injunctions to the extent that eventually a two-year suspended sentence of imprisonment was activated against her.

Her appeal was dismissed with costs by the Court of Appeal on two grounds. First, her right of self-help lapsed when the judge refused her claim for a mandatory injunction. She should not, therefore, have taken the law into her own hands. Second, the law does not favour the remedy of abatement (as held, inter alia, by the House of Lords in Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226.

Another example may be given from family law. In relation to post-divorce financial remedy proceedings, a spouse cannot secretly, and without the permission of the other spouse, look through and make copies of their spouse’s confidential documents in their absence: this sort of self-help does not today enjoy judicial favour. Thus, according to the Court of Appeal in Imerman v Tchenguiz Imerman [2010] EWCA Civ 908, such conduct would be ‘criminal or actionable’ (para 121). In this case, the court deplored the behaviour of ‘wives who purloin their husband’s confidential documents’ (this would also apply to husbands who behave in the same way) (para 121). The court ruled that the files or copies of them so obtained should be returned to the husband’s solicitors, and the wife be restricted from using any of the information gained from those documents.

Self-help , therefore, does not enjoy judicial approval because it is risky: persons exercising it are likely to break the law while so doing. No wonder that in Burton above, Anthony Lloyd LJ referred to Greene J in Moffett v Brewer (1848) Iowa 1 Greene 348, 350: ‘This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy’.

When is self-help available?

The answer is where there is a clear and simple case or where there is an emergency (requiring immediate action). Indeed, in Burton above, Anthony Lloyd LJ stated: ‘Ever since the assize of nuisance became available, the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy’ (para 851). He then went on to say that the modern textbooks in England and other common law jurisdictions ‘followed the same line’ (para 852). The issue of when self-help is available was also addressed by the Court of Appeal in Macnab and another v Richardson and another [2008] EWCA Civ 1631.

In the event of an emergency, therefore, the injured party can take a simple, straightforward action in a reasonable way, for example, using reasonable force, without having to go to court. In such a situation, the party’s act is highly unlikely to fall foul of the law. Thus, in Chamberlain v Lindon [1998] 2 All ER 538, the court agreed that Lindon’s demolition of Chamberlain’s wall, which was obstructing his right of way, was proper and reasonable because there was a present need to remove that obstruction without recourse to a court action.

Why do people choose to exercise self-help?

The answer seems to lie in the advantages that self-help provides. The first advantage is that the remedy is summary or quick: the person exercising the principle of self-help does not have to endure any delay or wait for a court action. The second advantage is that the remedy is cheap: there are no court costs or legal fees to be paid if it is lawfully exercised. Lastly, the principle makes unnecessary the duty to mitigate loss; in other words, the person exercising self-help does not have to take any other action or steps to reduce their loss, as they would be expected to do where there was a court action because failure to mitigate one’s loss may affect an award of damages.

No wonder self-help is commonly exercised in dealing with trespass to land and the abatement of a nuisance. Regarding trespass to land, there are two categories: trespass by human beings and trespass by things, such as tree branches and chattels like cars and animals.

How can the self-help remedy be lawfully exercised?

The remedy of self-help can so be exercised by using common sense methods that are in keeping with the law. For example:

• First, regarding self-defence , one must use only reasonable force (ie, such force as is reasonable in all the circumstances of the case (see Flint above, where the defence failed). CLA s3(1) also allows a person to use reasonable force to prevent the commission of an offence. However, in the defence of property against an intruder, the law allows a householder to use force which will be unreasonable only if it is ‘grossly disproportionate’ in the circumstances (Crime and Courts Act 2013 s43).
• Second, regarding trespass to land by human beings, again a person may use reasonable force to eject the trespasser (Collins v Renison (1754) 1 Say 138). However, where there is trespass by chattels, there is what is known as the ‘right of distress damage-feasant’ . This is the right of an occupier of land to seize any chattels or cattle trespassing, or are wrongfully on their land and doing damage there, and to detain such chattels or cattle until their owner has paid compensation for the damage done. In relation to this, the former practice of wheel-clamping a car on private premises is now a criminal offence, according to Protection of Freedoms Act 2012 s54 (see, for example, Arthur v Anker (1995) December 1, Times). The principles of distress damage-feasant in the case of animals have now been embodied in the Animals Act 1971 (see, for example, sections 7(2) and (3)) .
• Third, where the branches of a neighbour’s tree overhang your property, you have the right to cut off the offending branches; however, you must return them to the neighbour because if you appropriate them, you may be liable for conversion (Mills v Brooker [1919] 1 KB 555).

Furthermore, in order to lawfully abate a nuisance emanating from your neighbour’s land, the House of Lords in Lagan Navigation Co above specified the following requirements:

• You must give notice to your neighbour unless notice is not necessary (for example, where you cut off the branch(es) of a tree overhanging your property, and this would not involve trespassing onto your neighbour’s land (see Lemmon v Webb [1895] AC 1).
• You must not do any unnecessary damage.
• If there are two or more ways of abating the nuisance, you must choose the least mischievous way.

Conclusion

As can be seen from the foregoing, the ancient remedy of self-help is an act that an injured party does in order to obtain redress without having to go to court. Thus, it is an extra-judicial remedy. It obviously has certain advantages, in that it is quick, cheap and also makes unnecessary the duty of an injured party to mitigate their loss. However, the remedy does not readily enjoy judicial approval because it is risky: the person exercising self-help is likely to violate the rights of another, or simply break the law. This has been illustrated with various cases regarding trespass to the person, (for example, Flint above); nuisance and trespass (for example, Burton above); and purloining a spouse’s confidential documents before post-divorce financial remedy proceedings (for example, Imerman above).

The important question of when self-help may be exercised has also been posed and answered: ie, where the matter is a clear and simple one or where an emergency has arisen and immediate action is required. In these situations, self-help can be safely used provided that the party exercising it employs reasonable methods or common sense methods which are in accordance with the law.

The topic of self-help (and, therefore, this article) may be said to be of considerable importance because this ancient and non-judicial remedy is often taken for granted by aggrieved or injured parties. The advantages of this remedy, especially being speedy and cheap, are so appealing that some people exercise it without thinking about the possibility they may break the law or violate the rights of others. This article will, hopefully, help to raise the level of public awareness of how risky self-help can be.