Richard Harrison looks at this week’s important Supreme Court decision on liability for nuisance
The (not-so) final decision
The Supreme Court has now decided that the residents of four flats overlooked by the Tate Modern’s viewing gallery are entitled to some sort of legal remedy for nuisance.
The original judge, four years ago, had decided that the claimants were not entitled to relief. The Court of Appeal agreed with him, on different grounds. The Supreme Court, by a bare majority of 3-2 disagreed with all of them.
So three judges can prevail over six. (Lord Leggatt, Lord Reed and Lord Lloyd-Jones against Lord Kitchin and Lord Sales, Sir Terence Etherton, Lords Justice Lewison and Rose and Mr Justice Mann).
Liability is now decided but the consequences have been referred back to the High Court.
Unless the precise nature of the remedies (damages and/or injunction) is settled by agreement or mediation, the parties could well be in the litigation system for another four years. And no doubt the costs of all this will be an issue.
A picture painting a thousand words
Going back four years
Four years ago, following the judgment at first instance, and having taken the above photo, I wrote:
“The “Neo Bankside” case, the decision of Mr Justice Mann in Fearn & Others v. The Trustees of the Tate Gallery is interesting in a number of ways.
First, it is a judicial analysis of certain consequences of London life, of neighbours rubbing up against each other, albeit the circumstances were unusual and the neighbours in question not denizens of the usual suburban streets.
Second whilst it may not have finished its path through the appeal system, it contains a thorough review of the relevant authorities on the tort of nuisance which will fascinate both academic lawyers and those who may have to advise on such issues in future.
And, lastly, it illustrates some facts about the pathology of the litigation system and how advice as to the outcome of any particular case depends less on guiding and predictable principles, or right and wrong, but more on the weight a judge is going to attribute to some very nuanced factors.
Both sides in this case had some merit in their respective positions, neither behaved badly and both would have merited sympathy and support from their representatives and generated a belief that they probably had a good case. In the end, it is not about that and sometimes undeserved disappointment is an inevitable outcome of the litigation process.
In summary, the judge looked at a range of factors and his eventual decision that there was no actionable nuisance derived from a balancing exercise. A slight difference in the steps taken by the Tate, the nature of the flats, the location and the opportunities available to the owners might have produced a different result. As ever, the outcome of litigation is a matter of factual assessment and nuanced judgment.”
Well with hindsight, I think I managed to hedge my bets quite effectively and point to the possibility of different views being reached by different judges.
Summary of the outcome
The Supreme Court judgment runs to almost a hundred pages. I summarise as follows:
Nuisance arises when:
there is substantial interference with the ordinary use and enjoyment of a claimant’s land
that interference is not a common and ordinary use of the defendant’s own land.
Nuisance can arise from being overlooked. The cause of action is thus capable of protecting expectations of privacy.
The original judge made three legal errors, in deciding:
that “reasonable” use of a defendant’s land avoided liability as opposed to common and ordinary use.
that in choosing to live in flats with glass walls, the claimants had voluntarily exposed themselves to the nuisance. That would have been the case if the Tate had been making common and ordinary use of their land but the viewing platform went beyond this.
that the claimants could protect themselves by putting up net curtains or blinds. This wrongly transferred responsibility for abnormal use of land.
It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. In deciding whether one person's use of land has infringed another's rights, the public utility of the conflicting uses is not relevant.
The benefit of land use to the wider community may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all.
The minority of the Supreme Court dissented on the applicability of the reasonableness test and thought that the judge at first instance had been best placed to assess this.
Everyone disagreed with the Court of Appeal who had taken the view that “overlooking” did not give rise to a cause of action in nuisance.
Conclusion
So, four years after I mentioned that predicting litigation outcomes was not simple, six extremely eminent judges have been disagreed with by three equally eminent judges who just happen to hold a majority in the Supreme Court.
The claimants’ tenacity and dedication is to be much admired but no sensible lawyer could have properly advised at the outset that the outcome was at all predictable.
And uncertainty of remedy is now thrown into the mix.
