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Further to the High Court’s decision in February 2019, which was discussed in our previous blog post found here, the claimant leaseholders took their appeal regarding the Tate Gallery’s alleged breach of privacy to the Court of Appeal (“CA”). The Claimants were granted permission to appeal on four grounds and took three of these forward to the CA. The Claimants argued that the trial judge had wrongly:

  1. Disregarded interference with the Claimants’ use of their flats due to the large windows because he wrongly made a counterfactual assumption that the flats were situated in an imaginary building with significant vertical and perhaps horizontal breaks which interrupted the inward view from a viewing balcony;
  2. Failed to have regard to the use of the viewing gallery to photograph and film individuals in the Claimants’ flats with the photos and videos sometimes being posted on social media; and
  3. Failed to hold that the installation in the flats of privacy film and net curtains would be problematic and preventive measures as such installation would be in breach of the leases of the flats.

In their judgment the CA judges disagreed with the decision of the trial judge.  However, they still rejected the claimants’ appeal and concluded there had been no breach of neighbourly privacy caused by the Tate Gallery’s famous viewing platform.

The CA held that despite the hundreds of years in which there has been a remedy for causing a nuisance to an adjoining owner’s land and the prevalence of overlooking in cities and towns, there has been no reported case in this country in which a claimant has been successful in a nuisance claim for “overlooking by a neighbour”. Furthermore, the CA held that, on the other hand, there have been numerous cases decided on which judges have decided expressly that no such cause of action for nuisance exists.

The CA further concluded that the overwhelming weight of judicial authority means that merely overlooking is not capable of giving rise to a cause of action in private nuisance. The CA judges held that this was likely a result of the impact of such a decision on building in towns and cities. Even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however inconsiderate that annoyance may be.

For this reason the CA considered that it would be preferable to leave it 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 and the appeal was therefore rejected.

Should you wish to discuss this topic further or have any other questions please contact Shams Rahman or any other member of the Edwin Coe Property Litigation team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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