Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4: first thoughts

01 Feb 2023

Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4

The Supreme Court has, by a majority of 3-2 overturned the unanimous decision of the Court of Appeal which had itself, albeit for different reasons, upheld the decision of the trial judge (Mann J.) dismissing the claim.  As a result, it is clear that intrusive viewing can, in principle, constitute the tort of nuisance.

All five of their lordships preferred the view of Mann J. that intrusive viewing from a platform can in principle give rise to such a claim.  The judgment of the majority given by Lord Legatt (with whom Lords Reed and Lloyd-Jones agreed) made clear, however, that to establish such a claim would require more than simply the defendant’s land (or building) being situated at higher level and having a view of the claimant’s land (or building).  Consequently, it would not be correct – or would at least be misleading – to talk of a tort of ‘overlooking’ as that term is generally used.

The majority held that the fact that the Claimants’ nearby flats were largely glass-walled did not mean that they were entitled to special treatment but merely meant that they might find themselves more inconvenienced by lawful use of the Tate’s building.  However, because the Tate’s use of the viewing gallery went far beyond anything which could be regarded as the “necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land” the Tate was seeking to distort the balance of reciprocity and that, simply applying the normal principals of the law of nuisance, made that use actionable.

The majority also explained that questions of self-help (in this case the possibility of drawing blinds or putting up net curtains) were, like the question of public interest in the conduct complained of, not germane to the question of liability but were, rather, only relevant in determining what remedy (injunction or damages) might follow.  The question of remedy in this case was remitted to the Chancery Division.

The judgment of the minority given by Lord Sales (with whom Lord Kitchen agreed) differed on the potential role of reasonable self-help measures.  In an unusual case such as this liability in nuisance, which necessitated balancing competing interests in land did not depend solely on the defendant’s use of its property but required a broader consideration including an assessment of whether the claimants’ use of their own land was common and ordinary for the locale or whether they had made themselves particularly vulnerable to the intrusion complained of.  The trial judge, not having concluded that the Claimants’ use of their own land was common and ordinary for the locale, was required to carry out a balancing exercise based on an objective standard of reasonableness and, in so doing, was not precluded from taking into account, as he had, reasonable self-help measures in deciding that there was no nuisance.

It may well be that the final curtain has not fallen on this litigation.  While the case has been remitted back to the Chancery Division for a remedies hearing in the event that the parties do not reach agreement, the minority judgment (which would have dismissed the appeal) has indicated that one of the matters for decision by the Chancery Division will be what impact the principle of finality in litigation might have, given that the Particulars of Claim only sought an injunction and the trial did not include any enquiry as to damages.  Whether that point will give rise to further decisions, or whether it is provides little more than a negotiating tool for the Tate, remains to be seen.

Article by John Clargo. First published for LexisNexis.


John Clargo

Call: 1994


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