Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
Hello, I’m Isabel Emerson-Lich and I’m the Vice Chair of the PLA’s Website and Marketing Committee. I’m here today to bring you the next Counsel on the Couch and I’m very fortunate to be speaking to Tom Weekes KC of Landmark Chambers about the case of Fearn and others versus the Trustees of the Board of the Tate Gallery, which I am sure many of you will already be familiar with. We’ll be sharing this on our social media channels so, if you like what you’re about to see, please do like and share.
So, Tom, I think many of our members will already be familiar with the judgement even though it was now handed down a year ago, but maybe you could just remind everyone briefly what the case was about.
Tom Weekes KC
Landmark Chambers
So, I was acting for the owners of four flats in a block of flats on the South Bank called Block C at NEO Bankside. It was a claim against the Tate Gallery complaining that the amenity at the flats was harmed by the Tate’s viewing gallery from the Tate extension, complaining that photography, observation and watching from the viewing gallery interfered with the amenity of the flats to such an extent as to be a nuisance. We lost at first instance in front of Sir Anthony Mann, we lost again on an Appeal to the Court of Appeal but finally, we succeeded in the Supreme Court by a majority of 3 to 2. The Supreme Court held that the operation of the viewing gallery was a nuisance to my clients.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
Obviously, this interview was meant to happen some time ago but it couldn’t because settlement discussions were ongoing so, I think what we’re all really interested in is what’s happened since the Supreme Court? Where are we now?
Tom Weekes KC
Landmark Chambers
So, the Supreme Court having held that the Tate was liable in nuisance, remitted the case back to Sir Anthony Mann, the first instance judge, to decide what remedy should be awarded. So, the options were either an injunction or an award of damages in lieu of an injunction. We ended up at a CMC back before Sir Anthony Mann and departing company from what Lord Sales said at the end of his dissenting judgement. Sir Anthony thought that it was for the Tate, as the Defendant, to assert a claim for damages in lieu of an injunction, not for our clients and Sir Anthony put the Tate to its election as to whether it wanted to argue for an award of damages rather than an injunction and in the event the Tate, despite having previously indicated it might want damages to be awarded, it elected not to argue for damages and instead to accept an injunction and in those circumstances, it then became pretty easy to settle the case and the case settled on terms of the Tate offering an undertaking essentially not to resume the nuisance and that now gives the Tate option either of preventing visitors to the viewing gallery entering those parts of the viewing gallery which provide a view towards the flats or alternatively, they could provide a solution such as frosted glass or a system of louvres to obscure views from the viewing gallery towards the flats.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
And moving into the realms of the hypothetical slightly, obviously because it settled, the question of remedy has never had to be dealt with but what in your view would have been the remedies awarded had it got that far?
Tom Weekes KC
Landmark Chambers
Well, I mean before I answer that question, there was this amazing historical coincidence of that argument happening about that building because the Tate occupies what was the Power Station Bankside B. Before that, there was a power station called Bankside A and Bankside A was a sort of enormous nuisance to central London, not only its immediate neighbours. 1950 it was depositing 223 tonnes of grit per square mile over central London. Now, scroll back to 1895, a pub situated 30 feet from the power station brought a claim in nuisance arising from damage to the pub by vibrations and steam and all kinds of things and won. There was then the question of remedies and the pub wanted an injunction but the owners of the power station, the City of London Electric Lighting Company, argued that the Court should withhold an injunction because it would be contrary to the public interest. They said an injunction would stop it providing electricity to the city of London for most of their street lighting and the Court of Appeal granted the pub the injunction. So, you can guess what happened then, the Court delivered the Electric Lighting Company bound hand and foot to the pub and the nuisance wasn’t stopped but the event that the pub were bought out and actually became the, an office for the company. Going back to your question, I think in this case we would have got an injunction. I think there are three reasons for that. First of all, the courts are particularly concerned to protect amenity in people’s homes, that’s something that emerged from Coventry and Lawrence, three of the judges in the Supreme Court made that point. Secondly, when it comes to the public interest, the supposed public interest of visitors looking over the unremarkable views over south London.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
That might be debatable but yes.
Tom Weekes KC
Landmark Chambers
Certainly, nothing like the magnificent views eastwards towards the City or north or even the quite interesting views to the west. But it’s hardly the defence of the realm or a cancer ward. Finally, it seems to me that a feature of this case is that the nuisance to the, to my clients, wasn’t kind of incidental or a side product or the thing that was supposed to be in the public interest, it was actually sort of baked into it. The viewing by visitors to the viewing gallery out over south London that included a really gross interference with the privacy of my clients in their home and I think that, that for those three reasons I think in, if it had have been fought and it would have been a interesting fight and it would have provided the Court with an opportunity to provide further guidance on the role of the public interest in a nuisance case, I think at the end of the day we would have got our injunction.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
That’s so interesting, particularly the historical facts and how they play into the current case. And going back to the original judgement, it must have felt quite daunting for your clients to go up against the Tate, obviously a great national institution. Why did they feel so strongly about it?
Tom Weekes KC
Landmark Chambers
Because as the first instance judge held, and it was I think a superb judgement even though we didn’t agree with the outcome, the viewing gallery did have a terrible affect on living in the flats and the lawyer and expert team came to understand that because we went into the flats and we could see what it was like to be in the flats under observation from the viewing gallery. As you move towards the windows, people on the viewing gallery would interact with you, they would wave at you and you could see people taking photos and it was particularly bad for people with children or grandchildren who used the flats. One of my clients, Mr Craftman, who is retired but as a result of the viewing gallery he and his wife didn’t have their grandchildren into the flats. I had another client, Mrs Urquhart, who had a young daughter; she didn’t allow her daughter into parts of the flat that weren’t obscured by blinds and I think that gives you a sense of just how bad it was.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
I mean that does sound very uncomfortable for the residents of the flats. And what in your view do you think were the key factors as to why you eventually won, having lost twice at, in the lower courts?
Tom Weekes KC
Landmark Chambers
So, I mean the explanation given by the majority in the Supreme Court, this is in Lord Leggatt’s judgement, is that the courts below had been wrongly influenced by what they thought was the public interest in the Tate’s use of the viewing gallery at the stage of liability and the Supreme Court said the public interest is relevant but only at the stage of remedy. And I think that perhaps there is a wider point there, I think in litigation it is always easier to be acting for a great, national institution, particularly where that seems to be aligned with the interests of the public rather than a small group of individuals but in terms of the ultimate outcome of the case, we need to remember the judges split 6-3 against us, we managed to get the crucial 3 majority in the Supreme Court, but I think the answer is that the authorities didn’t dictate the answer and the judges in this case, and we had absolutely top quality judges including notable specialist judges in the area of property hearing the case, they were grappling with really big issues and I think it is unsurprising in doing so that they arrived at different outcomes. So, I mean it, just to take say three examples, one issue touched upon by Lord Leggatt was the question of what rules of principles of nuisance best promote economic efficiency, there’s also a big issue which influenced the Court of Appeal’s thinking about the case as to the proper relative roles for state and particularly through the planning system and the common law in regulating the use of land, the Court of Appeal if you remember thought there should be, that this sort of thing should be dealt with by the planning system. And then there was also a big, big difference of opinion in the Supreme Court as to whether, at least in this area, the common law should express itself with a one big organising principle allowing judges to use their judgement and make a multifactorial assessment, that was the view of the minority, based on the idea of reasonableness or whether the common law should express itself through more prescriptive principles, which was the view of the majority, Lord Leggatt thought that the common law should aspire to more than simply a big principle allowing a sort of free range of fairly free ranging exercise and judgement by a judge. So, really big, big issues at play, unsurprising that the judges reached different views about the correct outcome.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
I think you mentioned to me earlier that Lord Leggatt in particular might have had a personal interest in this case.
Tom Weekes KC
Landmark Chambers
That’s, that’s right, of course so, great issues of legal policy at play in the case but also, as in all litigation, the personalities evolved with their own histories and when we read the judgement we noticed that Lord Leggatt had made a reference to a case called Laws and Florinplace, which neither side had cited and it turns out that was a, a case which Lord Leggatt and his family had been involved with. It involved back in 1980, someone bought a ladies clothing shop in Pimlico and turned it into a sex shop, half the street claimed this was a nuisance, sued the owner of the shop and got their interim injunction and amongst the claimant neighbours of the shop was someone called Andrew Leggatt, who was a barrister who ended up in the Court of Appeal and he had bought his house for his son and daughter, which the son being George Leggatt, who ended up as our Judge in the Supreme Court. So, who knows but it is possible that with that personal background, Lord Leggatt was able to better understand what my clients were going through.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
Yeah well, that is definitely interesting information that I don’t think many people will know about. And now for a bit of crystal ball gazing, how do you think will the Tate case affect future nuisance cases?
Tom Weekes KC
Landmark Chambers
So, first of all the Court of Appeal were, were I think obviously wrong to think that the victory for my clients is going to open the floodgates for visual intrusion cases. I saw the PLA gave a student essay prize about whether the case would, that the outcome in the Supreme Court would open the floodgates, all three students who came first, second and third thought it wouldn’t do. I thought that question was too easy, it was, it’s obviously, they were all obviously right to say that the floodgates wouldn’t open. In relation to visual intrusion cases, we are going to get some cases perhaps particularly to do with CCTV cameras and the like, for instance a CCTV camera pointing at a neighbour’s home. Beyond that in the area of nuisance, I think technology is important. It was a big part of the, my clients’ complaint about what the interference from the viewing gallery, that it was exacerbated by technology, the fact that we all now have mobile phones with high quality cameras on them and the fact that visitors to the viewing gallery could not only take photos of the inside of my clients’ homes but also then post it on social media sites. So, I think the fact that technology allows, allows buildings to be used in ways in which they hadn’t been used before could be a theme of future cases. I also think that there is scope for the judgement to impact the law relating to restricted covenants and in particular to restricted covenants which prohibit cause and a nuisance and annoyance. Now as a result partly the case I was in called Dennis and Davies many years ago, those covenants have been held capable of being breached by really unexceptional housing developments and I think the scope for the courts now to revisit that in light of the fact that Lord Leggatt in his judgement said, and I think it was quite striking, that building on land, developing land is fundamental to the ordinary use of land and therefore can’t be a, a nuisance of common law and of course there’s no sort of automatic read across between common law and nuisance and a nuisance covenant but I think that will give added ammunition for people arguing on behalf of developers that an unexceptional housing development can’t breach a nuisance covenant.
Isabel Emerson-Lich, Managing Associate
Mishcon de Reya
Well I guess we’ll have to wait and see what happens on that front but definitely lots of interesting things to come and I think that’s all we’ve got time today but thank you so much for sharing your insights on the case with us Tom, that was very interesting.
Tom Weekes KC
Landmark Chambers
Thank you.