Case note: Fearn and others v The Board of Trustees of the Tate Gallery  EWHC 246 (Ch)
The incorporation of the European Convention on Human Rights (“ECHR”) into domestic law under the Human Rights Act 1998 (“HRA”) is not solely concerned with actions against the institutions of the State, otherwise categorised as “core” public authorities.1 It also concerns what is come to known as “horizontal effect” - that private litigants may have recourse to Convention rights during their dispute by virtue of requiring the court, based on the cause of action of a claimant, to act compatibly with the Convention.2 The content of the cause of action(s) relied on the Claimant are supported by Convention norms, instead of substituting the common law or statutory cause of action in question. Fearn and others v The Board of Trustees of the Tate Gallery3 provides an example of the role of courts in the context of horizontal effect of the Human Rights Act, in this case attempting to fill the gap in the common law action of tort of nuisance. This case note focuses primarily on the approach of Mann J in determining whether a claimed privacy from overlooking can be protected by the tort of nuisance. It argues that a principled and restrained judicial approach is the best in delineating the court’s role of infusing Convention norms into disputes between private parties under s.6(3)(a) HRA 1998.
Facts and summary of judgement
The flats in question were in a development adjacent to the Tate Modern art gallery. Their living areas looked directly onto a viewing gallery which was open to the visitors of the museum. The flats had winter gardens which had wall-to-ceiling windows. The gardens were used by the claimants as part of their living accommodation. Visitors using the gallery had an uninterrupted view of the living areas of the flats.
The claimants alleged that they were the subject of scrutiny by many visitors of the gallery. They submitted that they had a cause of action in nuisance, and argued that they could rely on their right to privacy under Article 8 on the basis that the Defendant is a “hybrid public authority” under s.6(3)(b) HRA 1998.4 In arguing that the Defendants are liable in nuisance, it seeks to bridge the gap between the tort of nuisance and the acts of overlooking in question, relying on the Human Rights Act, and in particular Article 8 of the Convention. The Claimant’s submissions on the role of Article 8 in developing the tort of nuisance are twofold:5
● Privacy is an aspect of amenity of land. Article 8 reinforces claims to privacy, and courts are now obliged to develop the law so as to give effect to that right of privacy by extending (if necessary) the law of nuisance to protect it. This is mirrored by the extension of the law of confidence to protect private information.
● The nuisance is the operation of the gallery as a viewing gallery, from which there is afforded a view into their flats which is inevitable and which visitors take advantage of, to an extent which affects the use and enjoyment of the flats because it encroaches on and invades their privacy.
Having found that the Defendant is not a “hybrid public authority” under s.6(3)(b),6 Mann J proceeded to dealt with the core issue of the case and the focus of this case note: the tort of nuisance claim as based on the right to private and family life under Article 8 ECHR.
The role of the Human Rights Act in supplying Convention norms to private actions: the tort of nuisance
The common law reaching out to the Human Rights Act and Convention norm
Mann J began by noting that the tort of nuisance, absent statute, would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home.7 The Defendant’s concession that deliberate overlooking could give rise to nuisance accompanied by malice suggests that, given the right circumstances, a deliberate act of overlooking could amount to actionable nuisance. Having set out the contours of the common law action, Mann J then moved on to observe that, in the case if there are any doubts as to the ability of nuisance to form a cause of action in the present case, the doubt “has been removed by the Human Rights Act and Article 8,”8 which contains a right to respect for an individual’s private and family life and his come. This reinforces the relatively limited and restrained role of Convention norms when the court is adjudicating private disputes: the primary emphasis of protection of privacy horizontally remains in tort law. Convention norms articulating a right to private and family life, while accurately reflecting the position which the individual should be restored in the case of a successful nuisance action, nevertheless should only be consulted in the case of any doubts as to the nature and contours of the common law nuisance action.
Mann J then moved on to note that the notion of “home” is expressly referred to in the present case, stating that “a person has a reasonable expectation of privacy in relation to much of what occurs in the home and in relation to the home itself.”9 The notion of “home” here as employed, it is submitted, is sufficiently expansive to incorporate issues which are not covered by the common law of nuisance itself. It opens up considerations relevant to an individual’s privacy in a private place (in this place his home), and thus considerations under Article 8, which were originally excluded from consideration due to the court’s conclusion on the s.6(3)(b) issue. At this point, Mann J relied on McKennitt v Ash  to extend the tort of nuisance to cover the alleged tortious actions: that “external prying into a home would contravene the privacy protected by Article 8. It could be done by e.g. particular acts of directed and intentional overlooking, if the circumstances justified it.”10 The cause of action resulting from an alleged act of prying does not arise under Article 8 ECHR, but by developing existing causes of action.11 This is the correct and an appropriately restrained judicial approach to the court’s development of the common law in the HRA era. Although the courts cannot a new cause of action based on Convention rights, it is possible for it to fulfil its role of acting compatibly with the Convention by developing existing cause of actions.12
Given the bridge between common law and HRA is bridged by McKennitt, it is worthy to examine it and its relationship with the present case. Focusing on the notion of home, Buxton LJ noted that Article 8 imposes “not merely negative but positive obligations” on the State.13 Following so, the effect of s.6 HRA 1998 is that in order to find a breach of confidence, it would be necessary to look into Convention jurisprudence.14 Buxton LJ also observed that it is possible to draw an analogy between security or stability of the residence with the issue of privacy within the home; it is “intrusive and distressing for Ms McKennitt’s household minutiate to be exposed to curious eyes.”15 The basis of a positive obligation to develop a common law cause of action based on the Convention requirements thus lies at the root of section 6. Without such connection, courts cannot simply resort to Convention rights by drawing analogies or comparisons between notions which appear to concern similar issues (e.g. “home”, “privacy” etc.). The court’s duty to act compatibly with the Convention and subsequent inclusion of Convention norms and principles in private law tort claims, otherwise known as “indirect horizontal effect,” is reflected in its modification of common law principles to reflect the relevant fundamental right(s) an individual enjoys under the Convention.16
Support from the Human Rights Act: enriching common law jurisprudence
Mann J noted that since the enactment of the HRA 1998, the law of nuisance “ought to be and is capable of protecting privacy rights from overlooking in an appropriate case.” If such development is not made by the courts, there would be “a gap in the protection of privacy in the home where e.g. a landowner used his/her land to spy on a neighbour unreasonably.”17 Together with his reliance on McKennitt v Ash, it appears that the “bridge” in question that brings norms underlying the Convention and the concerns of the common law tort of nuisance is supported by two issues: (i) the notion of the “home” as expressly stated and referred to by the litigating parties in the present case, and (ii) the values and expectations associated with privacy and the concept of a “home.” Commenting on the court’s approach to the horizontal effect of Convention rights, Phillipson observed that the courts’ approach in finding values applicable to the situation before them is an instance of identifying some broad principles that should be taken into account. This differs sharply from saying that the individual “has” rights.18 None of the cases concerning the protection of individual privacy under tort law post-HRA 1998, from Campbell v Mirror Group Newspapers to Fearn, has accepted full or direct horizontal effect of Convention rights. A private litigant is not allowed to invoke a Convention right directly against another private individual, and then asking courts to adjudicate on the merits of the Convention rights claim directly.
The ultimate concern in question, as the courts’ approach demonstrates, is the substance of the common law on which, in light of the incorporation of Convention rights into domestic law under HRA 1998, the parties will be entitled to protection on. This is generally consistent with domestic courts’ previous approaches to the issue of indirect horizontal effect of Convention rights in, inter alia, Campbell and Douglas v Hello! Ltd.19 In Douglas, it was stated that it was “no longer the case” that “Strasbourg provides no definite answer to the question of whether the Convention requires states to provide a privacy remedy against private actors.”20 The seminal ECHR case of Von Hannover v Germany, in which the ECtHR recognised the possibility of a positive obligation on the part of the State to protect an individual’s Article 8 right,21 was cited by the Court of Appeal as a direct authority for finding a positive obligation on the part of the State to ensure that a private remedy is available for the claimants in the case of a successful action.
Tate Modern is an interesting decision illustrating how the HRA shapes the development of domestic law. It shows that the Act, despite having no direct bearing on private actions, can nevertheless enter into the realm of private law via the doctrine of horizontal effect. While the full implications of the case cannot be examined in the limited space of this essay, it is nevertheless clear that the HRA does not only shape our rights as individuals against public authorities,22 but also disputes in private law.
 For a definition of “core” public authorities, see Parochial Church Council of the Parish of Aston Cantlow and Wilcote with Billesley, Warwickshire v Wallbank  UKHL 17.
 The Court’s duty here is stated by s.6(3)(a) HRA 1998, when read in conjunction with s.6(1) HRA 1998.
  EWHC 246 (Ch).
 The legal issues and principles surrounding s.6(3)(b) is complicated and would not be elaborated in this case note. An overview of the law and recent developments on s.6(3)(b) can be found in A Williams, “Public Authorities and the HRA 1998: Recent Trends”  Judicial Review 247.
 (n 3) .
 ibid -.
 ibid .
 ibid .
 (n 8).
 (n 3) -.
 Ibid .
 This approach is authoritatively stated by Lady Hale in the seminal case of Campbell v Mirror Group Newspapers Ltd  UKHL 22, .
  QB 73, .
 Ibid . Being a breach of confidence case, the Convention jurisprudence being taken into account in McKennitt were those arising under Articles 8 and 10 ECHR.
 (n 13) .
 A Young, “Mapping Horizontal Effect” in D Hoffmann (ed), The Impact of the Human Rights Act on Private Law (CUP 2011).
 (n 3) .
 G Phillipson,”Clarity Postponed: Horizontal Effect After Campbell” in H Fenwick, G Phillipson and R Masterman (eds) Judicial reasoning under the UK Human Rights Act (2007), Chapter 6.
  EWCA Civ 595.
 ibid, .
 ECtHR 24 June 2004, app. no. 59320/00, -.
 As found under s.6(1) of the Act.