tort


2023: Year of the Nuisance?

24 March 2023 by

Introduction

Photograph: Jeff Morgan 16/Alamy; the Guardian

2023 has already been a landmark year for nuisance, with the Supreme Court handing down its controversial decision in Fearn v Tate Gallery (as discussed on this blog).  

The good news for those with a particular interest in the bothersome behaviour of neighbours is that Fearn is only the start. 

This month, the Supreme Court will hear not one, but two more nuisance cases, including Jalla v Shell (the other being The Manchester Ship Canal Company v United Utilities No 2). And the Court of Appeal has been getting in on the act too – giving judgment last month in Davies v Bridgend County Borough Council [2023] EWCA Civ 80.

This post focuses on one of the many fascinating points raised by these cases – namely, the slippery concept at the heart of both Davies and Jalla: continuing nuisance.


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Supreme Court finally weighs in on the Tate’s viewing platform

22 February 2023 by

In a headline-grabbing decision, the Supreme Court has decided that an observation platform at the Tate Modern Art Gallery (“the Tate”), which overlooks a number of nearby luxury apartments, gives rise to the tort of nuisance – read judgment

The residential flats (right) are overlooked by the Tate Modern’s viewing platform. Photograph: Victoria Jones/PA

In 2017 a group of apartment owners from the Neo Bankside building issued proceedings complaining that visitors accessing the south side of the Tate’s observation platform could, and frequently did, look directly into the living areas of their homes (which have floor-to-ceiling windows). The judgments refer to visitors “peering in”, “looking”, in some instances waving to the flat occupants (friendly), and there was even a mention of someone looking in using binoculars (creepy). The evidence at trial also established that pictures taken from the platform, including views of the apartment interiors, had been posted on social media. The owners alleged that the Tate’s operation of the observation platform gave rise to the tort of nuisance, and they sought an injunction requiring it to prevent the intrusion they were experiencing (for example by blocking off that part of the platform), or damages in the alternative. 


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Loss from unlawful governmental action: the counterfactual?

11 March 2020 by

Vodafone et al v. Ofcom [2020] EWCA Civ 183

Ofcom make some unlawful regulations in 2015, under which telecom companies have to pay higher fees. The regulations were quashed in 2017. Four telecom companies want restitutionary damages, being the difference between the sums paid under the 2015 regulations and the sums they would have paid under their predecessors, the 2011 regulations.

Big money washing around: the claim was for over £200m.

Ofcom says – no, you are only entitled to the difference between the 2015 payments and the hypothetical fees which we could lawfully have charged had we done our job properly in 2017.

Sounds quite simple, but the answer goes deep into the intersection between public and private law.

The claim, as I have said, was restitutionary.

Ofcom said that the law of restitution is rooted in the private law of obligations. The private law approach (as with any tort claim) is to apply a “but for” test – what would the telecoms have paid but for the unlawfulness? This involves the counterfactual: what lawful fees could Ofcom have imposed?

The telecoms, and the Court of Appeal, disagreed. Ofcom’s argument offended the principles of legality, and parity (the principle that those who pay voluntarily should not be worse off compared to those who refuse to pay and litigate).


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Does “damage” go wider than injury? Supreme Court on jurisdiction

23 December 2017 by

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.


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How mad must you be, not to be responsible for your actions?

14 July 2015 by

1a45b808-20f6-11e5-_934669cDunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment

This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.

Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.

You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.

You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.

The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?

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Je suis James: Pianist finally allowed to tell his story of sexual abuse

22 May 2015 by

Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court

Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court

James Rhodes v OPO (by his Litigation Friend BHM) and another, [2015] UKSC 32

The Supreme Court has handed down its judgment in an appeal by the celebrated concert pianist, James Rhodes. You can read the judgment here and watch Lord Toulson’s summary here.

The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.

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Google’s misuse of private browsing data entitles individuals to damages – Court of Appeal

31 March 2015 by

google-sign-9Google Inc v Vidal-Hall and others [2015] EWCA Civ 311 (27 March 2015) – read judgment

This case concerned the misuse of private information by an internet provider based in the United States. Google had secretly tracked private information about users’  internet browsing without their knowledge or consent, and then handed the information on to third parties (a practice known as supplying Browser-Generated Information, or ‘BGI’).

The issue before the Court of Appeal was twofold:

  1. Was the cause of action for misuse of private information a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction?
  2. What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998 (the DPA) and in particular, did it give rise to a claim for compensation without pecuniary loss?

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When a duty of care does arise in tort – suing Companies House

8 February 2015 by

big_thumb_1b93Sebry v Companies House and The Registrar of Companies [2015] EWHC 115 (QB) – read judgment

Paul Rees QC and Neil Sheldon of 1 Crown Office Row represented Companies House in this case. Neither has had anything to do with the writing of this post.

Cases about whether someone owes a duty of care in tort can be surprisingly difficult to decide. Kate Beattie has just posted on the Michael case here, where no duty was held to arise, despite (it appears) the police control room being told by the doomed Ms Michael that her ex-boyfriend had just told her that he was just about to “fucking kill you”. He was as good as his word, within 20 minutes, and the family now sues the police. How much more direct can  you be than that? And yet the family lost 5-2 in the Supreme Court.

The facts of the present case are much less graphic. A muddle in Companies House meant that Mr Sebry’s long-established company (Taylor and Sons Limited) was marked on the official Registry as being in liquidation, whereas the true insolvent company was Taylor and Son Limited – just one Son. Companies House corrected the error quickly, but key creditors and suppliers had heard about the false information, and withdrew credit – such that within 2 months Mr Sebry’s company had gone into administration.

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Rihanna wins against Topshop but does she have a right to her image? – Emily Goodhand

2 August 2013 by

Rihanna--010Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment

The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?

The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.

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“Snatch Rover” case – inviting judges into the theatre of war?

20 June 2013 by

Snatch-Land-Rover_1113235cSmith and Others (Appellants) v The Ministry of Defence (Respondent) and other appeals – read judgment and our previous post for summary of the facts

So, the Supreme Court has refused to allow these claims to be struck out on the principle of combat immunity. It has also asserted that jurisdiction for the purpose of an Article 2 right to life claim can extend to non-Convention countries, and that the state can owe a positive duty to protect life, even in a situation of armed combat.

This ruling deserves close attention not least because it takes common law negligence and Article 2 into an area which is very largely uncharted by previous authority. Lord Mance does not mince his words in his dissent, predicting that yesterday’s ruling will lead, inevitably, to the “judicialisation of war”. Lord Carnwath is similarly minded; in this case, he says, the Court is being asked to authorise an extension of the law of negligence (as indeed of Article 2), into a new field, without guidance from “any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities.” Lord Wilson also dissented on this point.
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Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses

18 April 2013 by

shell460US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment 

In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices. 

The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag.  The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).


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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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