Latest Updates

Private Nuisance - Visual Intrusions

In February 2023, the Supreme Court handed down the judgment in Fearn and Others v Board of Trustees of the Tate Gallery.  It was decided that visual intrusion is actionable under the common law tort of private nuisance.

This case is unlikely to open the floodgates to overlooking claims as the test is whether the use complained of is  “common and ordinary”. In this case it was held that the Tate’s viewing gallery was not “common and ordinary” and “cause[d] a substantial interference with the ordinary use and enjoyment of the [appellants’] properties.

Whilst the case clarifies that the common law of nuisance can apply to visual intrusion, general overlooking of property which is typical in most urban areas and in some suburban areas, is unlikely to constitute an actionable nuisance.

Directors’ Duties

Directors duties to the company also include a duty to consider creditors’ interests where insolvency probable. BTI 2014 LLC v Sequana SA [2022] UKSC 25.

Director’s wife liable to account as constructive trustee

The wife of a director of a company in insolvent liquidation who blindly followed her husband’s instructions was found liable to account as a constructive trustee. Manolete Partners Plc v Nag and Anor [2022].

Banks Fiduciary Duty to Customers

Whilst the courts did not make an order for the defendant to pay costs on an indemnity basis in Richards & Anor v Speechly Bircham LLP & Anor [2022], as the judge in the case considered that the failure to engage in mediation was only one factor that should be considered before the court exercises its discretion in this regard. Earlier cases have seen the courts, including the Court of Appeal, adopting a robust approach and ordering costs on an indemnity basis against a party refusing to engage in mediation.

Limitation Period

In contractual claims, the limitation period starts from the date when the work is done and not the date of the invoice or demand unless there is a special provisions in the contract that provides otherwise. The fact that payment is to be made after a specific period of time, for example, 90 days after the issue of the invoice, does not affect the running of time for the limitation period. Consulting Concepts International Inc v Consumer Protection Association (Saudi Arabia) [2022].

Restrictive Covenants in Employment Contracts

Law By Design v Saira Ali [2022]. Court ruled in favour of Law By Design saying the firm was ‘entitled to seek to protect the customer connections built up by LBD employees providing legal services to NHS clients’. These cases depend on their own set of facts but on the facts of this case the restriction was determined to be no wider than necessary to protect LBD’s legitimate business interests.

The Government’s consultation paper on measures to reform post termination non compete clauses in contracts of employment closed on 26 February 2021. The Government is due to issue its findings but as yet there is no firm date for the issue.

Data Protection and Digital Information Bill

Aims to update and simplify the current data protection framework, is now in the Committee Stage.

Adjusting Service charge proportions

The Court of Appeal has ruled that a provision in a long residential lease permitting landlords to reapportion the initial fixed service charge proportions remains enforceable. Where the provision, often found in long leases, allows the landlord to adjust the fixed proportions, the Court of Appeal held that such provision is not void under section 27A(6) of the Landlord & Tenant Act 1985 and the determination can be made by the First-tier Tribunal. Aviva Investors Ground Rent GP Limited v Williams [2021]. This has been appealed to the Supreme Court and is awaiting judgment.

Final injunctions

The Court of Appeal reinstated an injunction order to prevent unknown and unidentified persons from occupying and trespassing on land. However, the Supreme Court have granted permission to the persons concerned, primarily from the Romani Gypsies, Irish Travellers and New Travellers, to appeal the Court of Appeal judgment and this will be heard in February 2023. Wolverhampton City Council and others v London Gypsies and Travellers and others.

Should Universities Have a Legal Duty of Care to Students?

This month saw the release of the High Courts ruling on the University of Bristol’s appeal against the of the parents of Natasha Abrahart and the parent’s cross appeal in the same case.

This is the tragic case of the student who committed suicide as a result of the pressure she felt to do oral presentations in front of other students.  The parents argued successfully that Natasha’s death was as a result of the discrimination she faced because it was apparent Natasha’s chronic anxiety and depression was a disability for which reasonable adjustments should have been made which included finding other ways to elicit the information required to be given in the oral presentations.  The High Court rejected the University of Bristol’s appeal but failed to give an opinion as to whether universities have a legal duty of care to students.