The appeal from the decision of the Court of Appeal in Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104; [2020] PLSCS 22 was heard by the Supreme Court on 7 and 8 December 2021.
The decision on appeal was handed down after more than 13 months of judicial consideration on 1 February 2023. Our highest appeal court has a heavy workload, but a delay of this magnitude is unusual, and perhaps signals that the justices had difficulty in deciding on the outcome. In the end, three justices allowed the appeal, with two dissenting.
The judicial tally across all levels of the courts involved is that six judges considered that there was no nuisance involved in the operation by Tate Modern of its viewing gallery (albeit for different reasons), while three judges considered that there was. Because the three judges occupy seats in the highest court in the land, however, the finding of an actionable nuisance prevails.
Important points to note
Two particular points of interest for property practitioners emerge from the two leading judgments in the Supreme Court ([2023] UKSC 4; [2023] PLSCS 22).
The first concerns the nature of the tort of private nuisance. In the courts below, the treatment of the tort had differed markedly. At first instance, Mann J agreed that, had it been necessary to do so, he would have been minded to conclude that the tort of nuisance would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home. However, he went on to hold that the claimants were occupying a particularly sensitive glass-walled property, which they were operating in a way that had increased the sensitivity, through not taking the protective measures available to them, such as using net curtains or blinds during the gallery opening hours. As he held: “It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance.”
The Court of Appeal disagreed with this analysis, but upheld the result, on the basis that the overwhelming weight of judicial authority was that mere overlooking is not capable of giving rise to a cause of action in private nuisance.
There were important policy reasons for not extending the law in the way sought by the claimants:
- First, it would be difficult to apply an objective test in nuisance for determining whether there had been a material interference with the amenity value of the affected land.
- Secondly, the court considered that it was relevant to take account of other ways for protecting owners of land from overlooking, in particular planning laws and control.
- Thirdly, what might be said to be the issue in overlooking cases, and in the present case, was invasion of privacy rather than damage to an interest in property. There are already other laws which bear on privacy, and this is an area in which the legislature is better suited than the court to weigh up competing interests. Privacy is an area that requires a detailed approach which can be achieved only by legislation, rather than the broad brush of common law principle.
For these reasons, the Court of Appeal found it preferable to leave it to parliament to formulate any further laws perceived to be necessary, rather than to extend the law of private nuisance.
A nuisance had been committed
Interestingly, all five Justices in the Supreme Court decided, contrary to the views of the Court of Appeal but in line with the provisional views of Mann J, that visual intrusion, of the kind proved in the case (consisting of near constant observation, made worse by the use of cameras and social media, and occasionally binoculars), was capable of amounting to a private nuisance.
That being the case, the majority in the Supreme Court had no difficulty in holding that, since the operation of the viewing gallery could not be said to constitute a normal use of the Tate’s land, in contrast to the use by the leaseholders of their glass-walled flats some 30 metres away, a nuisance had been committed.
There was also an important, if ultimately unsuccessful, human rights aspect to the case. At first instance, the claimants had argued infringement of their privacy rights conferred by Article 8 of the European Convention and that the Tate, as a “hybrid” public authority, was in breach of section 6 of the Human Rights Act 1998. This direct privacy claim failed, and permission to appeal was refused. The Court of Appeal considered that there had been no finding of an infringement of Article 8, and overlaying the common law tort of private nuisance with Article 8 would significantly distort the tort. The Supreme Court in turn regarded the claimants’ reliance on Article 8 as an unnecessary complication and distraction.
Not the end of the story
The second point of interest for all of us is that the decision in the Supreme Court does not, in fact, dispose of the case altogether.
Although the majority held that the facts found by Mann J disclosed that the operation of the viewing gallery was a nuisance, the question what remedy the court should grant was not argued on appeal, and the court did not consider that it was in a position to decide that matter. It therefore remitted the question to the High Court for further argument.
At that point, it will no doubt be argued on behalf of the flat owners that an injunction should be ordered requiring the Tate to take steps to prevent the public being able to view the flats. The argument to the contrary has, of course, already been aired in court: that a balance is to be struck, involving some self-help on the part of the flat owners, in order to preserve the ability of the public to enjoy the panoramic views from the viewing gallery. It will be interesting to see how this final stage in the litigation will play out.
Guy Fetherstonhaugh KC and Elizabeth Fitzgerald, together with Aileen McColgan KC, represented the Board of Trustees of the Tate Gallery at all levels of the litigation and were instructed by Herbert Smith Freehills LLP
