Supreme Court ruling in Tate Modern privacy case could create ‘new front of litigation’

Last week, the owners of four luxury flats overlooked by the viewing platform won their bid to establish that the visual intrusion that it caused constituted an actionable legal nuisance. The ruling on Wednesday came after a 2019 High Court decision dismissed the owners’ claim on the basis that the viewing platform at the Tate was not an actionable nuisance, partly because remedial steps, or protective measures – such as lowering solar blinds – could be taken to reduce the interference caused by the overlooking.

In February 2020, the claim was also dismissed by the Court of Appeal, which held that ‘overlooking’ could not give rise to a cause of action in nuisance and that it should be left to parliament to formulate any further laws that are perceived to be necessary to deal with overlooking, rather than to extend the law of private nuisance. But, overturning the lower courts’ decision by a majority of 3-2 last week, the Supreme Court held that the Tate was liable to the residents in private nuisance.

The Court noted that the viewing of the residents’ flats by those on the viewing platform went far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use of the Tate’s land. The Court held that claimants should not have to take remedial steps to avoid the adverse consequences of defendants’ actions, adding that there was no judicial authority for the proposition that visual intrusion cannot give rise to a cause of action in private nuisance.

Richard Bartle of Pinsent Masons said the Supreme Court’s “most important finding” was that “visual intrusion can constitute an actionable nuisance” in certain circumstances. “While the Court acknowledged that such circumstances are likely to be relatively rare in practice, Lord Leggatt did note, in his leading majority judgment, that developments in technology markedly increase the “potential” for such claims. Lord Leggatt even tacitly suggested that constant observation of certain land from CCTV could, in some circumstances, including, probably, where the level of intrusion is of unreasonable duration and intensity, itself constitute an actionable nuisance.”

Pierre Smith of Pinsent Masons added that, despite the residents’ victory, “the floodgates have not been opened” to nuisance claims for overlooking being brought by occupiers of glazed buildings. “A degree of overlooking is said to be expected according to the principle of ‘give and take’, and the Court acknowledged that the attraction of living in modern, high-rise city buildings with floor to ceiling windows does come at a price in terms of privacy. However, it remains to be seen whether there will now be a new front of litigation exploring when ‘mere overlooking’ crosses the line into ‘visual intrusion’, and when an ordinary and common use becomes unordinary and uncommon,” he added.

Smith said the decision re-emphasised “that it is not acceptable to place a burden to mitigate on the ‘victim’ rather than on the person who carries out the activity that amounts to an exceptional use. It is no defence to say that the ‘victim’ of a nuisance could take steps to avoid or mitigate the consequences of the nuisance by, for example in this case, using solar blinds, privacy film or by putting up curtains.”

Bartle added: “Perhaps most significantly, the Supreme Court did not determine what remedy the flat owners are entitled to now that they have founded a claim for an actionable nuisance – an injunction; an injunction and damages; or damages instead of an injunction. That issue has been remitted back to the Chancery Division of the High Court to determine. The Supreme Court in this case did, however, refer to the relevance of public policy in determining appropriate remedy, as it previously did in Lawrence v Fen Tigers case in 2014.”

“It is therefore likely that discussion as to whether circumstances exist in this case in which the flat owners’ property rights should be subordinated to the general good of the community, by way of a damages award rather than an injunction, will be a key issue in the Chancery Division when remedy is considered. An equally critical question for the Chancery Division will be the basis of assessment and the quantum of damages that should be awarded to the residents if damages, rather than an injunction, are awarded in the Chancery Division,” he said.