The claimants in Fearn v Tate Gallery Board of Trustees were the owners of luxury flats, featuring “striking” floor-to-ceiling windows, adjacent to the Tate Modern on the south bank of the Thames. Residents complained, when giving evidence at first instance, that they felt “more or less constantly watched” by visitors to the gallery’s roof-top viewing platform “as if they were in a zoo”.
Their direct privacy claim against the gallery, in its capacity as a hybrid public authority under section 6 of the Human Rights Act 1998, failed at first instance on the basis that the operation of the viewing gallery was a not a “function of a public nature”, and this point was not pursued further on appeal.
As regards the claim in private nuisance, Mann J considered the tort was in principle capable of protecting privacy rights in the context of a domestic home. “If there were any doubt about that”, it had been removed by the Human Rights Act: this was a development of the common law “under the direction of statute.” On the facts, however, he considered that there was no actionable nuisance: there was nothing unreasonable about the use of the Tate’s land per se, the design of the building inhabited by the claimants had created “additional sensitivity towards the inward gaze” and that there were remedial steps which the claimants could reasonably have taken.
Mere overlooking is not a nuisance
The Court of Appeal unanimously dismissed an appeal brought by the owners, albeit on grounds which differed significantly from those given below. The court took the view that that – even in principle – “mere overlooking is not capable of giving rise to a cause of action in private nuisance.” It considered that there were both considerable policy and doctrinal reasons which militated against judicial reform, concluding (at para ) that:
what is really the issue in cases of overlooking in general, and the present case in particular, is invasion of privacy rather than (as is the case with the tort of nuisance) damage to interests in property…This is an area in which the legislature has intervened and is better suited than the courts to weigh up competing interests: cf Wainwright v Home Office  UKHL 53,  2 AC 406, esp at , in which the House of Lords held that there is no common law tort of invasion of privacy and that it is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.
What difference does Article 8 make?
The court firmly rejected the suggestion that a more aggressive approach was required in light of rights arising under Article 8 of the European Convention on Human Rights, and took a far more restrictive view on the strength of the horizontal effect of Convention rights on private law than that implicitly adopted in the court below.
At para , it held that the correct approach to courts’ obligations under section 6 of the Human Rights Act was to consider (1) whether the status quo under domestic law would amount to an infringement of Convention rights; and (2) if so, whether it is appropriate to extend the common law to provide a remedy so as to avoid a breach.
On these facts, given that Mann J did not find an infringement of Article 8, he ought never to have proceeded past the first stage of the enquiry. The Court of Appeal cautioned that the European Court of Human Rights had never held “that mere overlooking by a neighbour or a neighbour’s invitees is a breach of Article 8” and that as per the “mirror principle”, first articulated by Lord Bingham in R(Ullah) v Special Adjudicator  UKHL 26;  2 AC 323, “our courts should keep pace with, but not go beyond, Strasbourg.”
Even if Strasbourg jurisprudence were to require such a development, the court raised significant doubts as to whether this would be reform which would go beyond the proper bounds of incremental development of the common law (at –). The influence of Article 8 might “distort the tort in some important respects”, destabilising its proprietary roots and creating potential tension with other longstanding elements of the cause of action, such as the rule in Robinson v Kilvert (1889) 41 Ch D 88 regarding “special sensitivities” of the claimant.
Lessons for the future?
Whilst the Court of Appeal appears to have put up the shutters on Article 8-inspired arguments in the private nuisance context for the foreseeable future, it has offered valuable insight on the scope of courts’ statutory obligation to give horizontal effect to Convention rights.
The court was correct to point out that unless there is a lacuna in domestic law it is perhaps misleading to describe the development of the common law, by reference to the ECHR, as a process required or “directed by statute”. The duty imposed by section 6 merely requires courts not to act in a way which is incompatible with a Convention right. It is plausible to suggest that, absent an infringement of the ECHR, the statutory obligation to give effect to Convention rights is not engaged.
Moreover, the court plainly considered it significant that “overlaying the common law tort of private nuisance with Article 8” would sit uncomfortably with key elements of the tort. This is clearly an argument directed towards (constitutional) limits on judicial law-making, which echo the conclusion, noted above, that it would be preferable to leave innovation in this area to Parliament.
Whilst arguments founded upon incrementalism might otherwise put reform beyond the reach of the courts, academics have vigorously debated whether – and to what extent – such arguments are persuasive where the Human Rights Act is engaged. . The judgment is tantalizingly ambiguous, however, as to whether the court considered its observations regarding the significance of internal coherence concerns relevant in such cases. It is unfortunate that this aspect of the court’s reasoning is not more transparent on this point.
Tim Koch, BCL Candidate, University of Oxford