Damages: an appropriate remedy? – Natasha Rees writes for EG
The Estates Gazette have featured an article by Natasha Rees on the conclusion of the nuisance case against the Tate Gallery.
The article considers the Court’s approach to the question of remedy in nuisance claims where decisions now appear to be reached on a case-by-case basis, and factors such as planning permission and public interest are relevant.
Rees writes that: “Earlier this year the Supreme Court found in favour of five Neo Bankside residents, holding that the viewing gallery at the Tate Modern’s Blavatnik Building had created a nuisance by interfering with the residents’ use and enjoyment of their flats (Fearn and others v Board of Trustees of Tate Gallery  UKSC 4;  EGLR 14). As recommended by Lord Leggatt in his majority judgment, the proceedings were then remitted to the original trial judge in the High Court, Sir Anthony Mann, to determine the appropriate remedy.”
Following a hearing before the original trial Judge the Tate elected not to argue for damages and subsequently entered into an agreement with the defendants preventing use of the property in the way that had caused nuisance.
As such, Rees writes, this has “[put] an end to the nuisance and [disposed] of the proceedings.”
This ruling has raised questions regarding the circumstances in which courts will grant an injunction or will decide that damages should be awarded instead. The courts power to grant damages instead of an injunction derives from statute – “originally the Chancery Amendment Act 1858 (colloquially known as Lord Cairns’ Act) and currently the Senior Courts Act 1981.”
The article considers the Court’s approach which was until fairly recently based on the leading case of Shelfer v City of London Electric Lighting Co (1895), and which assumed an injunction would be granted save for in exception circumstances. This changed following the Supreme Court’s ruling in Lawrence and another v Coventry and others (2014)].
She writes that: “Lord Neuberger, who gave the leading judgment, stated that the mechanical application of the four tests leading to damages being awarded only in ‘exceptional circumstances’ was simply wrong in principle and that although prima facie the remedy for nuisance is an injunction, there may be circumstances where damages are more appropriate and there should be no inclination either way.”
As Rees states “The onus is on the defendant to show why an injunction should not be granted.”
“The court now has a wider discretion and the choice between an injunction or damages depends on the relevant facts, circumstances, and arguments in the case. While this allows the courts greater flexibility, it also introduces much greater uncertainty.”
The factors that might be taken into account include whether planning permission authorises the activity, or if any potential injunction would affect the viability of the defendant’s business or indeed the public’s ability to enjoy the activities carried out by that business.
What this meant in the Tate case was that the Tate’s activities or its use of the Viewing Platform was probably relevant to the remedy.
She writes that: “In his leading judgment, Lord Leggatt indicated that matters which needed to be addressed were whether there was a public interest in maintaining the viewing platform with a 360-degree view which was capable of overriding the prima facie remedy of an injunction.”
Rees concludes that:
“Where a person’s right to the enjoyment of their home is disturbed by an invasion of privacy, it is hard to envisage when damages might be an appropriate remedy. Such a right can rarely be compensated for in monetary terms. This was the majority view in Lawrence.
“In such cases, it is hard to see what public interest considerations might outweigh this. Matters of national defence or the provision of public services such as healthcare may, but it seems unlikely that recreational facilities or the public’s enjoyment of those facilities would tip the balance.”