This article is taken from the November 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

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People who live in glass houses shouldn’t sue phones, our judges have agreed so far. But will the UK Supreme Court take a different view in December?

The glass houses are located in one of the Neo-Bankside buildings on the south bank of the Thames, next to the Tate Modern gallery.

Residents on the 18th, 19th and 21st floors, along with a fourth claimant who lives lower down, are suing the Tate. Their building has an external skeleton allowing corner rooms, originally planned as open balconies, to be fully glazed from floor to ceiling. For those who can afford them, the views are overwhelming.

But so, the residents complain, are the camera phones, binoculars and video cameras trained on them by visitors to the gallery’s extension, which is free to enter during visiting hours. At its summit, the Blavatnik building is surrounded on all sides by an open-air viewing platform with a vista of St Paul’s Cathedral opposite and commanding views up and down the river. 

The claimants want an injunction ordering the Tate to screen its viewing platform

“Such a panoramic view of London is rather splendid (particularly over the Thames) and members of the public will find it very attractive,” observed Mr Justice Mann, “though differing views were expressed in the case about the merits of the view of south London.”

At its closest point, the distance between the public viewing gallery and the private apartments is as little as 34 metres. If the residents can see out, visitors can see in. Ian McFadyen, who owns apartment 1901, complains of the need to be “properly dressed” at all times. He can’t leave the washing out and compares it to living in a zoo.

From the flat below, Claire Fearn adds that people wave and make obscene gestures. Gerald Kraftman told the judge he could no longer sit at his 21st-floor breakfast bar because visitors to the viewing gallery were staring, photographing and filming him. Some residents had no option but to spend more time than expected living in their other homes. 

The apartments and the gallery extension went up at roughly the same time and this particular problem seems to have been, so to speak, overlooked. 

Nobody is seeking damages but the claimants want an injunction ordering the Tate to screen off part of its viewing platform. The gallery responded by putting up notices and telling the security guards to stop visitors taking intrusive photographs. Opening hours had been reduced. But the judge didn’t think these measures would make much difference.

What does the law have to say about this? Though the residents complained about breaches of their human rights, lawyers will recognise this as a claim for nuisance. That’s a civil wrong — a tort — which protects land from neighbours who interfere unduly with the owner’s enjoyment of it. All this is common law, developed by the judges over the centuries, and so the answer is to be found by analysing past cases.

Location certainly matters. Lord Justice Thesiger is remembered by law students for saying in 1879 that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” — though that was a reference to stinking tanneries rather than another snobbish remark about south London.

There have been cases where a property-owner has cut holes in a wall to create new windows. And people have occasionally built structures overlooking their neighbours’ property. But nobody has brought a claim quite like this before. Would the judges be willing to extend the law of nuisance to create land-based privacy rights, just as they had done by extending the law of confidence to protect private information?

They would not. Mann, who tried the case, accepted that “the law of nuisance is capable, in an appropriate case, of operating so as to protect the privacy of a home as against another landowner”. But it was not the fault of the Tate if a neighbour chose to live in a glass house. As Mann said, “the owners and occupiers of the flat have created their own additional sensitivity to the inward gaze”. They could lower the blinds or, subject to permission, stick reflective film on the windows. If all else failed, they could try net curtains.

Nobody has brought a claim quite like this before

The Court of Appeal was not prepared even to go that far. “Mere overlooking is not capable of giving rise to a cause of action in private nuisance,” three senior judges ruled in February 2020:

Despite the hundreds of years in which there has been a remedy for causing nuisance to an adjoining owner’s land and the prevalence of overlooking in all 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.

Nor had there been such a ruling at the human rights court in Strasbourg. Any extension of the law, the appeal judges said, must be a matter for parliament.

The Supreme Court has agreed to hear another appeal. Will the justices protect residents from the nuisance of nosy neighbours? Or must the residents simply overlook being overlooked? Like visitors to the Tate, we wait to see.