Private Law Theory

ABSTRACT
Fearn v Board of Trustees of the Tate Gallery, required the UK Supreme Court to resolve claims that by operating an open-air terrace, from which visitors could enjoy a high-level view of London, the defendants were committing the tort of private nuisance against the owners of nearby luxury flats. The Court decided that the intrusive staring into the flats by visitors to the terrace could be a form of private nuisance, but split as to whether the tort was being committed; a minority thought that it would be necessary to take account of the claimants’ flats being glass-walled, and consequently unusually vulnerable to ocular intrusion, and the possibility of the claimants mitigating their discomfort by using blinds, whilst the majority insisted that it was straightforward to hold the defendants liable. This article concentrates on the majority’s re-statement of the basic test for liability in private nuisance, in particular their shift from an approach that assesses the ‘reasonableness’ (or otherwise) of the defendant’s activity to one that relies heavily on a distinction between ‘common and ordinary’ and ‘special and unusual’ uses of land. It concludes that several key elements in the re-statement will require further elucidation, and that the key distinction does not reflect the values that its proponents hoped that it would.

Roderick Bagshaw, Private Nuisance: The UK Supreme Court Take a View, Journal of Tort Law, volume 16, issue 2. Published by De Gruyter 8 December 2023.