Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4

The Supreme Court (by a majority) held that the Tate, by operating a viewing gallery at Tate Modern so as to enable visitors to engage in viewing into neighbouring flats, is liable in nuisance.  The viewing gallery meant that living in the flats was “much like being on display in a zoo”.  The principles of nuisance developed in the 19^th century remain good law.  Watching/observing can be a nuisance.  The fact that the claimant occupies a sensitive building is no defence.  The case has been remitted to the High Court to determine the appropriate remedy.

Departing from the decisions at first instance and in the Court of Appeal (which dismissed the flat owner’s claims for different reasons), the Supreme Court’s majority judgment is a robust reassertion of the protection afforded by the common law to privacy in the home.  There was no need to extend the common law to accommodate the right to privacy guaranteed by Article 8 of the ECHR.

Tom Weekes KC and Richard Moules (along with Jacob Dean of 5RB), instructed by Natasha Rees and Sarah Heatley of Forsters LLP, represented the successful flat owners.

The Judgment may be accessed here.

Press coverage of this case may be found on BBC News, Sky News, The Independent, The Guardian and The Lawyer.