I. Introduction

It was Peter Birks who first suggested that we could set out private law using conceptual or contextual categories and brought to our attention the danger of mixing the two forms of categorisation in an account of private law.

Peter Birks contrasted ‘Company law and family law’, which he called ‘contextual categories’ because ‘They aim to draw together all the law relevant to families and companies, much as labour law or education law draws together the law about employment [or education]’,[1] with conceptual categories such as ‘Property law [which is] a category based on analysis of a type of right, the right in rem’ and ‘Contract, tort and unjust enrichment [which are] categories based on generic conceptions of events which give rise to rights.’[2] These different ways of categorising the law mean that questions that are all treated in one place within the conceptual category of ‘restitution law’ crop up time and time again within lots of different contextual categories (such as the contextual categories listed above): ‘Yet the recurrence has no significance whatever. It does not threaten the independence of restitution/unjust enrichment’[3] as a category within private law.

The endless rehearsing of essentially the same questions across contextual categories means that trying to understand private law through a contextual lens is likely to be highly inefficient – a lot of time will be wasted going over the same material and the same questions over and over again as one attempts to grasp private law by breaking it down into ‘consumer law’, ‘agency law’, ‘company law’, ‘professional liability’ and so on and so on. I would go further and say that someone who tries to understand private law in this way will never ultimately achieve their goal. This is because the reasons that explain why private law does what it does are not ultimately context-specific.[4] So someone who is looking at a contextual category of private law will never get the whole picture of what that category of private law is up to, because the reasons for what it does reach beyond that context and underpin its interventions (or non-interventions) in a whole host of other contextual categories.

Take, for example, the question – mentioned by Peter Birks in the piece cited above – of whether money paid to a company under a contract that is void because ultra vires the company’s purposes can be recovered.[5] A student studying company law may well find out the answer to this question, but they will not understand the answer if they are ignorant – as they will be, if their focus is just on company law – of the law’s treatment of payments under a whole host of other void contracts and other transactions. It is only the student who studies restitution law (or, depending on taste, unjust enrichment law) who has a hope of really getting a proper grasp of what private law is doing when it comes to the recovery of payments made to a company under a void contract.

The ultimately acontextual nature of private law is best shown by torts that can be committed by any human being to any human being: torts of trespass to the person or defamation or the breach of certain duties of care (described at a sufficiently high level). There is no contextual category that could cover the torts of trespass to the person and the sort of contextual categories that would overlap with the law of defamation – such as ‘media law’ – or the breach of certain high-level duties of care – such as ‘motor accident law’ or ‘building law’ – could only provide students of the law with a radically truncated understanding of those (conceptually based) areas of law, for reasons already explained.

This is, of course, not to deny that certain rules of private law only apply to certain (contextually defined) categories of people. It is only when you sell goods in the course of business that your contract of sale will have a term implied in it that the goods are of satisfactory quality or fit for the purpose for which the buyer let you know they wanted them for. It is only the domestic occupier of premises who will be completely free to disclaim any responsibility for the safety of their visitors. But it is very difficult to think of private law rules that only apply between certain (contextually defined) categories of people – so that there are contextual limits on who is burdened by those rules and who is benefited by them.

The attempt to create such a set of rules in the UK’s Consumer Rights Act 2015, which only applies between traders and consumers, paradoxically makes my point for me. The 2015 Act has made UK contract law much more complicated as it contains a large number of rules that apply equally outside the consumer-trader context but when those rules apply outside that context, a completely different statute – such as the Sale of Goods Act 1979 or the Unfair Contract Terms Act 1977 – has to be invoked. So the 2015 Act gives the appearance of creating a code just for consumers and traders, but it does no such thing – by borrowing a lot of its rules from outside the contextual category of consumer-trader transactions, it effectively doubles the length of the law and makes it a lot harder to teach and remember, as well as giving unwary students a completely misleading impression of what private law is doing when it imposes duties and liabilities on those who sell goods in the course of business (it is not just trying to protect consumers, but anyone who buys those goods).

It follows that whenever an area of private law is described in contextual terms, we should be careful to count if not our spoons, then our rules to make sure that some of them are not fading from our collective consciousness because they simply do not come within the context with which that area of private law is being identified.

This is a danger courted by Hazel Carty, for one, when she says that ‘The common law having no general tort of unfair competition, the economic torts represent its chosen method to attack excessive (rather than simply aggressive) competition or economic endeavour, whether through diversion of custom or attacks on commercial links.’[6] What drops out of the picture when we think of the economic torts in such a contextual way are the cases where a defendant is held liable (or is potentially liable) for committing an economic tort when there is simply no way of characterising that defendant as having been in competition with the plaintiff.[7] The result is that one either gets a misleading picture of what private law is doing in the realm of the economic torts (it is not seeking to protect against excessive competition) or one gets a picture that is rendered ‘correct’ by virtue of all the cases that are inconsistent with that picture (because they fall outside the context within which the economic torts are being presented as operating) being dismissed as being decided on the wrong grounds, or as not being ‘economic tort’ cases at all.

All this is preliminary to saying that the UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery[8] has created major difficulties for understanding the law on private nuisance in England and Wales. By choosing to think of the law of private nuisance in contextual, rather than conceptual, terms – as part of ‘the law of neighbours’ – something has been missed out, which is that before the decision in Fearn the tort of private nuisance could be committed outside the context of disputes between neighbours. What is, and should be, the position now with regard to these kinds of cases is the topic of the next section.

II. The Trouble with Fearn

Of course, the UK Supreme Court was hardly breaking new ground by thinking of the law on private nuisance as concerned to determine what neighbours can and cannot do to each other as regards the use they make of their land. Academics have made a habit of advancing such a contextual understanding of the law of private nuisance.[9] For examples:

FH Newark: ‘The essence of…private nuisance is that the defendant has used his land in a manner which interferes with the plaintiff’s enjoyment of rights over land.’[10]

Tony Weir: ‘LAW BETWEEN NEIGHBOURS’ (heading for the part of his A Casebook on Tort dealing with ‘Chapter 10. Nuisance’ and ‘Chapter 11. Rylands v Fletcher’).[11]

Ernest Weinrib: ‘Nuisance law regulates conflicts between the owners of real property in accordance with the Kantian principle of right… In a nuisance situation, where the interacting agents are owners of real property, the principle of Kantian right vindicates their equal status by insisting that the defendant’s use by capable of coexisting with the uses that the plaintiffs make of their property.’[12]

Allan Beever: ‘the law of nuisance is the common law’s method for prioritising property rights so that conflicts between the uses of land can be settled and that the law does so by allowing more fundamental uses of land to trump the less fundamental… [Nuisance] law is the practical way in which our societies have attempted to determine which uses of land are more fundamental than others.’[13]

Jason Neyers and Jordan Diacur: ‘while there is no doubt that some sort of balancing is done in private nuisance, this balancing is not between the social utility of the uses (with the most highly valued use trumping the use of the other). The balancing is instead done between the competing uses of property owners to ensure that all have some use of their land and that no one owner can unilaterally sterilize or expropriate the uses of another.’[14]

Christopher Essert: ‘nuisance is about the reciprocity of rights, and reciprocity of rights is not reciprocity of harms. It is better understood in terms of the possibility of rendering consistent and systematic a right of owners such that all owners have a set of rights that allows them to interact with one another (and with non-owners) on fair terms…reciprocity of private law rights requires that the normative control that each owner has must be the same as the normative control that every other owner has.’[15]

This understanding of the law of private nuisance was adopted wholesale by the UK Supreme Court in Fearn, most notably in Lord Sales’ observation that ‘The unifying principle underlying the tort [of private nuisance] is reasonableness between neighbours’.[16] There is no reason to think that, whatever their other differences, Lord Leggatt – speaking for the majority – would have disagreed with Lord Sales on this point. As Lord Leggatt said,

‘At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners – “between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with”: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 (Lord Wright).’[17]

It follows from what was said in the previous section that this contextualisation of the law of private nuisance – by seeing it as part of the ‘law of neighbours’ – will result in something dropping out of view; something that can only stay in our sights when we look at private nuisance through a conceptual lens. And what drops out of view here are the occasions where a plaintiff can sue a defendant in private nuisance when the plaintiff and defendant were not neighbours, and did not even live or operate in the same neighbourhood.

A good example of this is provided in Lord Sales’ own judgment, when he mentions the case of J Lyons & Sons v Wilkins.[18] The defendants in that case were two members of the executive committee of the Amalgamated Trade Society of Fancy Leather Workers. The committee took against the plaintiff leather bag manufacturer’s working practices and organised pickets to stand outside the plaintiff’s place of business (and that of one of the plaintiff’s suppliers) and try to persuade people going to work at that place of business not to do so. The Court of Appeal held that:

‘to watch or beset a man’s house with a view to compel him to do or not to do what is lawful for him not to do or to do is wrongful and without lawful authority unless some reasonable justification for it is consistent with the evidence. Such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset, and such conduct would support an action on the case for nuisance at common law…’[19]

The fact that the defendants could not conceivably be described as ‘neighbours’ of the plaintiff was neither here nor there.

The same was true in Hall v Beckenham Corporation.[20] In that case, the plaintiff complained of the noise coming from the public park next door, the noise being created by various members of the public using the park to fly model aircraft (powered by noisy engines). The defendant council – which owned the park – was not held liable for the nuisance created by the members of the public as it was disabled from acting against them so long as they did not commit any crimes or violate any bye-laws. The interesting point for our purposes is that it was admitted on all sides that the members of the public were creating a private nuisance to the plaintiff’s enjoyment of his land by flying their model aircraft in the park even though those members of the public could not possibly be said to be neighbours of the plaintiff’s.[21]

The same point might also have applied in Fearn. The true authors of the nuisance in that case were the members of the public who used the defendant’s viewing gallery not to look out over London but to peer into the exposed areas of the claimants’ flats. Those members of the public – coming as they did from all over the world – could not be said to be neighbours of the claimants. If we lived in a world where it was regarded as shameful to look into someone’s private dwelling – with the result that no one using the defendants’ viewing gallery actually looked in the direction of the plaintiffs’ flats – it is doubtful whether the plaintiffs could have sued in nuisance for the mere potential that the defendant’s viewing gallery could be used to look into their flats.

Fearn’s contextualising the law of private nuisance as forming part of the ‘law of neighbours’ – the part that determines, when two neighbours’ desired uses of their land come into conflict, whose use of land will prevail – puts into question the correctness of the reasoning in cases like Wilkins and Hall. It seems to me that in light of the decision in Fearn, there are three possible positions that the law of private nuisance could take in dealing with cases like these. Each position is represented by a particular academic.

A. Beever

The first position is represented by Allan Beever, who is quite happy to commit to the proposition that a defendant cannot be held to have committed the tort of private nuisance unless the interference with the plaintiff’s use of land ‘results from the defendant’s use of the defendant’s land’, where ‘defendant’s land’ means ‘land of which the defendant is in legal possession.’[22] On this view, Wilkins cannot be said to have been a case where the defendants committed the tort of private nuisance – Beever reinterprets it as a public nuisance case[23] – and the members of the public in Hall who used the defendant’s land to fly their model airplanes cannot be said to have committed the tort of private nuisance.[24]

While there may be some judicial support for Beever’s position[25] (though it is likely to be accidental, rather than intentional), academic opinion is almost uniformly unenthusiastic. The former editors of Winfield & Jolowicz on Tort and Salmond and Heuston on the Law of Torts have taken the view that it would be ‘surprising’[26] and that the law would be unacceptably ‘rigid’[27] if it adopted Beever’s view and refused to find that D commits a private nuisance from the public highway if he (WVH Rogers’ example) ‘repeatedly disturbs C in his remote farmhouse by parking outside, shining his car headlights through the windows and playing his music system at full volume.’[28] Other academics think that it is beyond doubt that such conduct would amount to a private nuisance,[29] and it is hard to imagine that the judges who decided Fearn would sign up to Beever’s position on this issue. Their commitment to the idea that private nuisance is a tort that adjudicates between incompatible uses of land by neighbouring landowners would not take them as far as saying that a defendant who is not in possession of land cannot be held liable in nuisance.[30]

B. Bagshaw

In trying to make sense of the law on private nuisance in England and Wales post-Fearn for the 7th edition of McBride and Bagshaw on Tort Law, Roderick Bagshaw has come up with a summary of the law that (a) allows us to make sense of the central importance to the law of private nuisance post-Fearn of seeing it as part of the ‘law of neighbours’ while at the same time (b) allowing claimants to sue where a non-neighbour has interfered to an unacceptable degree with the claimant’s use and enjoyment of land.

Bagshaw sums up the current state of the law as follows:

‘we suggest that D will be liable for private nuisance when he is responsible for: (1) a substantial interference with (2) C’s ordinary use of her land, unless that interference resulted from either (3) D’s ordinary use of his land or (4) D’s rightful use of his land.’[31]

This view does not imply that D can only be held liable for private nuisance when he is using ‘his’ land in a way that substantially interferes with C’s ordinary use of her land.[32] What makes such cases different under the law on private nuisance is that D may be able to escape liability by showing that D’s use of his land was ‘ordinary’ or ‘rightful’.[33] Such an escape route will not be available to D in the case where he is responsible for interfering with C’s use of her land from the highway or public land or the sky. In such cases, all that will need to be shown for D to be liable is that he is responsible for (1) a substantial interference with (2) C’s ordinary use of her land – something that will clearly be made out in WVH Rogers’ example above.[34]

This seems to me a very elegant way of achieving goals (a) and (b). However, how appealing we find Bagshaw’s way of achieving these goals will crucially depend on whether we think that D should enjoy less protection from being held liable under the law on private nuisance if he interferes with C’s ordinary use of her land by doing something other than using his land in a particular way. For example, suppose that C lives between a public park and a property occupied by D. Would D’s potential liability in private nuisance for disturbing C’s ordinary use of her land by regularly flying a noisy model airplane depend on whether he goes to the public park to fly it, or whether he flies it in his back garden – so that it would be easier to sue D if he flew it in the public park, rather than in his back garden? Bagshaw’s way of achieving goals (a) and (b) seems to suggest that the answer to this question is ‘yes’. D may have a way of escaping being held liable to C if he flies the model airplane in his back garden that would not be open to him if he flew it in a public park – in the former case, he might be able to argue that his use of his land is ‘ordinary’ or ‘rightful’ when he could make no such argument in the latter case.

Let’s call someone who thinks it should make no difference to D’s liability whether he flies the model airplane in the public park or his back garden an Equaliser. So an Equaliser will think that the answer to the question just posed should be ‘no’.[35] Consequently, an Equaliser will reject Bagshaw’s way of achieving goals (a) and (b). Instead, as we will see, an Equaliser is likely to embrace Goldberg’s way of achieving these goals instead.

C. Goldberg

At first sight, John Goldberg seems to fall into what we might call the ‘neighbourly fallacy’ of thinking that the law on private nuisance is all about the law between neighbours. This is because he argues that ‘the tort of private nuisance consists of unneighborly conduct that interferes, intrusively, with another’s use and enjoyment of their property.’[36] He goes on to contend that ‘private nuisance law requires each of us to go about our lives in the manner of good neighbors’ where ‘“neighborliness” plausibly refer[s] to a distinct norm of conduct’. Quoting from Nancy Rosenblum’s Good Neighbors,[37] he argues that this distinct norm of conduct emerges out of the way that

‘Residential neighbors…are “uniquely vulnerable to one another…because of the stakes, the depth and intensity of the interests we have in quotidian private life and the felt necessity of a degree of control over conditions at home.” This “chemistry of proximity” lends itself to a distinct, circumscribed morality—a “minimal,” “threshold,” “sober” ethic that partakes of “basic decency, friendliness, [and] helpfulness.”’[38]

Goldberg sees – as anyone should – obvious parallels between this ethic and the norms that inform judgments about when a claimant can argue that his use and enjoyment of land has been tortiously interfered with by the activities of his defendant neighbour.[39]

At the same time, Goldberg readily acknowledges that ‘nuisance law applies among persons who are not actually neighbors: think of a factory that generates airborne pollution that damages private land located several miles away, or of deafeningly loud low-altitude overflights.’[40] But John Goldberg thinks that this point is less damaging ‘than it might seem’[41] to his account of private nuisance as rooted in the ethic of being a good neighbor:

‘In nuisance law, neighborliness does not specify the class of persons who are legally entitled to be free from certain interferences caused by others. Instead, it expresses the standard of conduct that, if met, renders such interferences nonwrongful. To be sure, the standard is one that is appropriate to govern the conduct of persons living in proximity to one another. But persons need not be literal neighbors to be subject to it.’[42]

In order to make this point clearer, Goldberg imagines in a footnote a gang of motorcyclists spending two weeks ‘riding unusually loud vehicles at all hours of the night on a quiet street with a single residence. The resident can justifiably complain that the motorcylists, even though not literally his neighbors, are acting in an unneighborly manner, i.e., in a way that actual neighbors would owe it to each other to refrain from acting.’[43]

An Equaliser would applaud the way Goldberg makes the liability of the motorcylists here track that of someone who was the resident’s neighbour, so that it is neither easier nor harder for a non-neighbour to commit the tort of private nuisance in relation to a claimant than it is for one of the claimant’s neighbours to commit that tort. This is why I think an Equaliser would prefer Goldberg’s way of achieving goals (a) and (b), above, to Bagshaw’s way. The following rule would make a non-neighbour’s liability in nuisance track a neighbour’s liability and thereby give effect to Goldberg’s way of achieving goals (a) and (b):

D will be liable for private nuisance when he is responsible for (1) a substantial interference with (2) C’s ordinary use of her land, unless that interference resulted from: (3) D’s ordinary use of his land or (4) D’s rightful use of his land or (5) D’s using land in a way that would have been regarded as ordinary or rightful had that land belonged to D.

This rule would handle perfectly well examples such as (i) D’s parking outside C’s house and shining lights into the house and playing music loudly, or (ii) D’s flying a noisy model airplane in a public park beside C’s house, or (iii) D’s riding up and down the road outside C’s house in a motorbike for two weeks at all hours of the day and night. One simply has to ask whether, if the road in (i) or (iii), or the park in (ii), had belonged to D would D’s use of that road/park have been regarded as being ordinary or rightful – if not, then D will have committed the tort of private nuisance in relation to C (it being assumed that (1) and (2) are made out in this case).

The one difficulty would be where D’s interference comes from the sky. Suppose, for example, that D puts on helicopter tours of his city for tourists and he will regularly have the helicopter hover outside business and residential tower blocks so that the tourists can have a good look at what is going on inside. It is hard to say that D is interfering with a particular C’s ordinary use of land by ‘using land’ in this kind of case. This is particularly the case where the airspace occupied by D’s helicopter is ownerless[44] because D’s operating a helicopter at that height cannot interfere with the ordinary use of the land directly beneath the helicopter[45] (as opposed to land adjacent to where D’s helicopter is hovering and on which D’s tourists’ attention is eagerly focussed).

This problem might be solved by adjusting (5) so that it reads ‘(5) D’s using land or airspace in a way that would have been regarded as ordinary or rightful had that land or airspace belonged to D’. But it may be that this is an unnecessary complication and that holding D liable in private nuisance for an interference from the sky if (1) and (2) are satisfied will not be seriously incompatible with an Equaliser’s desire to ensure that the law of private nuisance treats neighbours and non-neighbours alike in terms of when it will hold them liable for substantially interfering with a claimant’s ordinary use of land.

III. Temptations to Contextualise

It follows that the difficulties raised by Fearn’s contextualising the law of private nuisance as part of the law between neighbours are resolvable. Either we can be Equalisers and adopt the rule set out immediately above, or we can refuse to be Equalisers (on the basis that it should be harder to find someone liable in private nuisance for what they are doing on their own land) and adopt the rule set out by Bagshaw in the 7th edition of McBride & Bagshaw.[46] (I am assuming that we will not refuse to be Equalisers in the opposite direction – the way Beever wants us to go – and make it impossible for a non-neighbour to be held liable in private nuisance for substantially interfering with the claimant’s ordinary use of land.)

But the fact that these difficulties are resolvable should not blind us to the fact that these difficulties only arose because of the UK Supreme Court’s thinking of private nuisance as a contextual category – as part of the law of neighbours – as opposed to a conceptual category, organised around a defendant’s being held liable for unjustifiably interfering with a claimant’s use and enjoyment of their land. None of the difficulties dealt with in the previous section would have arisen if the UK Supreme Court in Fearn had adopted this traditional understanding of the law on private nuisance and focussed all their intellectual energies on rejecting the ‘physicalist heresy’ that there must have been some kind of physical interference with C’s land or some right associated with C’s land for C to be able to complain that they have been the victim of a private nuisance.[47]

Fearn therefore stands as a warning of the traps that lie in wait for us if we attempt to understand private law through contextual categories. But if we are to avoid those traps, we need to be aware of the temptations that would lead us to re-interpret a particular conceptual category (like the law of private nuisance, or the law on the economic torts) in contextual terms (as being ‘about’ the law of neighbours, or unfair competition) and learn to resist those temptations when they occur. The three principal such temptations are the pedagogical temptation, the relevance temptation and the Kantian temptation.

A. The Pedagogical Temptation

The latest, 20th, edition of Winfield & Jolowicz on Tort begins its discussion of the law of nuisance by contextualising it: ‘In modern parlance, nuisance is that branch of the law of tort most closely concerned with “protection of the environment”.’[48] However, the editors of Winfield & Jolowicz immediately qualify that statement (as they must), with their second qualification being most relevant for our purposes: ‘the prevailing stance of nuisance liability is that of protection of private rights in the enjoyment of land, so that control of injurious activity for the benefit of the whole community is incidental.’[49] In other words, the law on private nuisance is not concerned with ‘protection of the environment’. So why begin by suggesting that it is?

The reason is that the reader of this or any other textbook on tort who is coming to the subject of nuisance for the first time needs to be given a hook and an anchor by the writer – a hook that will activate the reader’s interest in the subject and an anchor that will give them a rough idea of what this subject is about. Given this, contextualising the law of nuisance is an almost irresistible temptation for a tort textbook writer because doing this will seem like a good way of providing the reader with the hook and the anchor that they need to make any progress in the subject. With luck, as the reader gains more and more knowledge of the law of nuisance they will be able to detach themselves from the hook and cut loose the anchor with which they were provided by the writer’s initial contextualisation of the law of nuisance. However, things can easily go in the opposite direction, with the reader concluding ‘Well if the law of nuisance is about protecting the environment, then it makes no sense for the law of private nuisance only to allow those with interests in land to sue in nuisance; so this aspect of the law is in dire need of reform’. They don’t at all question the premise of their argument as it was the very first thing they were told about the subject – and first impressions can be very hard to shake off.

To avoid these confusions, we need to resist the temptation to contextualise a traditional (conceptually-based) private law subject as a way of providing a novice reader with a hook and an anchor for their understanding of that subject. Private law students need to be reminded over and over again that a traditional (conceptual) private law subject is not ‘about’ anything but itself – which is the essence of Ernest Weinrib’s point that ‘private law is just like love’.[50] Tort law is not ‘about’ loss compensation; contract law is not ‘about’ the enforcement of promises or agreements; the law on private nuisance is not ‘about’ protecting the environment or regulating the relationship of neighbours; the law on the economic torts is not ‘about’ regulating competition in the marketplace; and so on. For the sake of the future of private law and its rational development, we need to find better hooks and anchors than these to help our students understand private law.

B. The Relevance Temptation

But it is not only the encounter with students that creates a temptation for academics to contextualise areas of private law. The temptation also arises when academics seek funding for a ‘research agenda’ into a given area of private law. For example, what is more likely to obtain funding from a research body – A research proposal on private nuisance that seeks to show how it currently operates as a tort to protect the environment and how much better it would function in that role if it sloughed off some of the old-fashioned rules under which it currently operates? Or a research proposal on private nuisance that seeks to show that picturing private nuisance as a ‘green tort’ is fundamentally misleading and that it has nothing to do with protecting the environment? Just to ask the question is to answer it – it is obvious that the first proposal will be regarded as much more ‘relevant’ to current concerns and much more worthy of funding than the second.

The attempt to establish the sort of relevance for one’s research agenda that will unlock the doors to serious research funding creates an irresistible temptation to contextualise areas of private law in ways that will allow the researcher to relate those areas to wider, present-day concerns and issues. This gives rise to the phenomenon parodied by Stephen Sedley as ‘law and plumbing’.[51] That is: ‘projects to recast law in the mould of some exogenous philosophy or activity’.[52] While Sedley observes that there is ‘nothing new or modern, let alone post-modern, about’ these projects, he wisely concludes that:

‘Law affects and is affected by everything it touches, economics and plumbing included. But it becomes none of those things, and none of them – not even plumbing – is, I respectfully suggest, entitled to make law either its captive or its handmaiden.’[53]

Heeding those words, we should be suspicious of attempts to present private nuisance, or other areas of private law, as especially worthy of research because of their relationship with some other activity or discipline that is attracting a great deal of political or funding interest. If an area of private law is research-worthy it is because of its intrinsic interest, and not because something else makes it research-worthy.

C. The Kantian Temptation

It is no accident that most of the authors cited at the start of the previous section as contextualising the law of private nuisance as the ‘law between neighbours’ or (more broadly) ‘the law on competing uses of land’ are Kantians. Despite Weinrib’s above-quoted admonition, and his status as the capo di tutti capi of Kantian theorists of private law, there is something about the Kantian way of looking at private law that – I claim – carries with it a temptation to contextualise areas of private law as the law governing relationships between particular classes of people in particular contexts.

This is because the Kantian reading of private law as maintaining relationships of equal freedom between people is easiest to make out when the people concerned are seeking to exercise the same freedoms in ways that may be mutually incompatible. Any attempt by private law to maintain a rough equality among those seeking to exercise those freedoms can be seized on by Kantians as evidence that this is what private law is doing all the time – seeking to maintain relationships of equal freedom among private individuals.

So Kantians will be particularly on the lookout for situations where people seek to exercise the same freedoms in ways that may be mutually incompatible – let’s call people in such situations, freedom rivals. And whenever such situations crop up, they will be very tempted to argue that in those contexts private law is peculiarly concerned to ensure that freedom rivals enjoy an equal opportunity to exercise the freedoms over which they are rivals. So private nuisance is read as the bit of private law that performs this function in relation to land owners who are freedom rivals in respect of exercising the freedom to use their land in the ways they see fit. Public nuisance is read as the bit of private law that performs this function in relation to road users who are freedom rivals in respect of exercising the freedom to use the public roads for their purposes. The economic torts can be read as the bit of private law that performs this function in relation to competitors in the marketplace who are freedom rivals in respect of exercising the freedom to gain greater market share. In this way, various areas of private law end up being contextualised as being ‘about’ the regulation of competing freedoms between sets of freedom rivals so as to maintain relationships of equal freedom between people generally.

The problem with such contextualisation is that the appearance that private law gives of maintaining relationships of equal freedom between freedom rivals is often only that – an appearance. As we have seen, private nuisance does not just operate between competing land owners. Public nuisance goes a lot further than imposing duties and liabilities between road users. The economic torts frequently operate between people who are not competing for greater market share. But the temptation to see these areas of private law as regulating the relationships between freedom rivals in the cause of upholding relationships of equal freedom between people can be so great that these plain facts start to be denied or sidelined.

This temptation must be resisted. If the Kantian story about private law is a good one, telling it should not require any straining or distortion of the facts of private law to make it out.[54] If private law does indeed regulate the relationships between freedom rivals in various different contexts in order to ensure that the freedoms over which they are rivals are enjoyed equally, then that will be an obvious feature of private law. And if, for the reasons I have given, it is not at all obvious that that is what private law is doing, then the Kantian account of private law will just have to be vindicated in some other way, if it can be vindicated at all.

IV. Conclusion

A private law that is in good shape will be both effective[55] and comprehensible. It has been the purpose of this paper to argue that private law can be most easily, efficiently and accurately comprehended when it is organised into various conceptual categories, as opposed to dividing it into various contextual categories. The difficulties created by the decision in Fearn are a warning of how muddy the waters can get when we do the second.

  1. Peter Birks, ‘Restitution and the Freedom of Contract’ (1983) 36 Current Legal Problems 141, 146.

  2. ibid 146.

  3. ibid 147.

  4. To similar effect, in discussing the law of contact, see Richard Epstein, Simple Rules for a Complex World (Harvard 1995) 73: ‘The logic of mutual gain from voluntary exchange is perfectly general. It rests only on the self-interest of individuals in a world of scarcity. It is not particular to one culture, one time, or one set of values. Most important for these purposes, the logic of exchange is not role specific. It does not speak about one set of rules for employers and another for employees, or one set for landlords and another for tenants. It does not create one set of rules for people who are rich and powerful and another set for those who are frail and weak. Instead, the law speaks about two hardy standbys in all contractual arrangements: A and B. These people are colorless, odorless, and timeless, of no known nationality, age, race or sex. These people are self-conscious abstractions known to be false as representatives of people in the world, and useful precisely because they are so detached from any grubby set of particulars.’

  5. Birks (n 1) 146-47.

  6. Hazel Carty, An Analysis of the Economic Torts (2nd edn OUP 2010) 2. See, to similar effect, Simon Deakin and John Randall, ‘Rethinking the Economic Torts’ (2009) 72 MLR 519, 520 (the economic torts’ ‘fundamental rationale…is to maintain the integrity of the competitive process’); JSC BTA Bank v Ablyazov (No 14) [2020] AC 727 [6] (Lord Sumption).

  7. Examples are Brimelow v Casson [1924] 1 Ch 302 (D, representing the interests of theatre workers, responded to C (a theatrical manager)'s paying his chorus girls so little that they were forced into prostitution to make ends meet by persuading theatre owners to breach their contracts to allow C to put on shows in their theatres; D was only saved from being sued for inducing breach of contract by a defence of justification); Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 1 WLR 1057 (Ds organised boycott by black musicians of racist ballroom owned by C, which refused to allow black people to dance on the ballroom floor; held that Ds could not be sued for conspiring to injure C’s interests as their predominant motive for organising the boycott was to protect the interests of black musicians); Godwin v Uzoigwe [1993] Fam Law 65 (D successfully sued for intimidating C into working for her unpaid for two years); Customs & Excise Commissioners v Total Network SL [2008] 1 AC 1174 (Ds held liable for conspiracy to injure the tax authorities by engaging in ‘carousel fraud’ that deprived tax authorities of VAT payments).

  8. [2023] UKSC 4.

  9. I leave aside, for the time being, the alternative contextual classification of private nuisance law advanced by some academics, as the ‘green’ or ‘environmental’ tort, concerned with determining how far someone can go in polluting the environment (see, for example, Joanne Conaghan and Wade Mansell, The Wrongs of Tort (2nd edn, Pluto Press 1999) ch 6).

  10. FH Newark, ‘Trespass or nuisance or negligence’ (casenote on Southport Corporation v Esso Petroleum) (1954) 17 MLR 579, 581.

  11. Tony Weir, A Casebook on Tort (10th edn, Sweet & Maxwell 2004) 415. Tony Weir’s An Introduction to Tort Law (2nd edn, OUP 2006) is more circumspect: ‘The claimant “in nuisance” must have a legal right in or over the affected land. The defendant usually has one, too, but this is not a legal requirement; it results from the operation of the inverse square rule, which tells us how rapidly light and sound (and smells, too, one supposes) diminish in intensity as distance increases: put less pompously, it is generally the people next door who are the real nuisance. We may therefore take it we are principally concerned with the relationship of neighbours [in the law on private nuisance]’ ibid 150 (emphasis added).

  12. Ernest Weinrib, The Idea of Private Law (rev’d edn, OUP, 2012) 191-92.

  13. Allan Beever, The Law of Private Nuisance (Hart 2013) 25.

  14. Jason Neyers and Jordan Diacur, ‘What (is) a Nuisance: Antrim Truck Centre Ltd v Ontario (Minister of Transportation)’ (2011) 90 Canadian Bar Review 213, 232.

  15. Christopher Essert, ‘Nuisance and the Normative Boundaries of Ownership’ (2016) 52 Tulsa LR 85, 99.

  16. Fearn (n 8) [158] (emphasis added).

  17. Fearn (n 8) [18] (emphasis added).

  18. [1899] 1 Ch 255 (cited in Fearn (n 8) at [172]).

  19. [1899] 1 Ch 255, 267 (Lindley MR). See also 271-72 (Chitty LJ). To the same effect, Hubbard v Pitt [1976] 1 QB 142; Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51.

  20. [1949] 1 KB 716.

  21. ibid 728: ‘as things are, anyone who wishes can go into this ground and fly his aeroplane subject to being proceeded against by a person aggrieved if in fact he commits a nuisance.’

  22. Beever (n 13) 129.

  23. ibid 135.

  24. Hall is not mentioned at all in Beever’s book.

  25. Hussain v Lancaster CC [2000] QB 1, 23; Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 [9].

  26. WVH Rogers’s view, quoted in Beever (n 10), 130.

  27. RA Buckey’s view, as expressed in his review of Beever’s book: (2014) 73 CLJ 174, 176.

  28. Beever (n 13) 130.

  29. See John Murphy, The Law of Nuisance (OUP 2010), para 4.26; Allen M Linden and Bruce Feldthusen, Canadian Tort Law (10th edn, LexisNexis, 2015) §15.24; James Penner, Property Rights: A Re-Examination (OUP 2020) 145.

  30. The issue was in fact raised in the very first private nuisance case decided by the UK Supreme Court after Fearn: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16, which was a claim for private nuisance caused by oil leaking from a flowline supplying a tanker out at sea (and from there contaminating the claimants’ land). It had been assumed on all sides in the courts below that ‘the tort of private nuisance may be committed where the nuisance emanates from the sea’). ibd [2]. The UK Supreme Court found for the defendants on a limitation point, and so found it unnecessary to consider an attempt by the defendants’ counsel to question whether this assumption was correct. ibid [47]-[49]. The oral argument on this issue can be viewed on the UK Supreme Court website at <https://www.supremecourt.uk/watch/uksc-2021-0050/300323-pm.html> (accessed 26/05/2024). I think it is fair to say that the arguments made by counsel for the plaintiffs were given a far friendlier hearing than those made by counsel for the defendants (see especially 1:34:50).

  31. McBride and Bagshaw, Tort Law (7th edn, Pearson Education 2024) §17.4(C) (emphasis in original).

  32. We make this point clear at §17.9(A).

  33. Terms explained at §17.8(7), (8).

  34. This was essentially the position taken by counsel for the claimants in argument in the Jalla case (see the video at (n 30) 1:08:15).

  35. An Equaliser will obviously reject Beever’s position that D might be liable in private nuisance if he flies the model airplane in his back garden, but not if he flies it in the public park.

  36. John Goldberg, ‘On Being a Nuisance’ (2024) 99 New York University Law Review 864, 889.

  37. Rosenblum, Good Neighbors: The Democracy of Everyday Life in America (Princeton 2016) 6-7, 11, 95, 99.

  38. Goldberg (n 36) 889-890.

  39. ibid 890.

  40. ibid 891.

  41. ibid 891.

  42. ibid 891.

  43. ibid 891, fn 106.

  44. See Kevin Gray, ‘Property in Thin Air’ (1991) 50 CLJ 252, 256.

  45. The standard that was adopted in Bernstein v Skyviews [1978] QB 479 for determining how high into the air a landowner’s interest in land extends. See also the Civil Aviation Act 1982, s 76(1).

  46. One reason we might refuse to be Equalisers and prefer Bagshaw’s position over Goldberg’s is that the rule formulated to give effect to Goldberg’s position might be thought to give too much latitude to trespassers on land adjoining C’s to create substantial interferences with C’s ordinary use of land. Under the rule giving effect to Goldberg’s position, a trespasser (D) might be able to argue that his substantial interference does not amount to a private nuisance because had the land adjoining C’s belonged to D, D’s use of that land would have been regarded as ordinary or rightful. To which C might well reply, ‘But it didn’t belong to you.’

  47. Fearn (n 8) [13].

  48. James Goudkamp and Donal Nolan (eds), Winfield & Jolowicz on Tort (20th edn Sweet & Maxwell 2020), para 15-001. This particular paragraph goes back to WVH Rogers’ time as editor of Winfield & Jolowicz.

  49. ibid.

  50. Weinrib (n 12) 5.

  51. Stephen Sedley, ‘Law and Plumbing’ in Sedley, Ashes and Sparks: Essays on Law and Justice (CUP 2012).

  52. ibid 227.

  53. ibid.

  54. But neither should we require it to account for every single fact about private law. Part of a good story about private law will be a story about its errors and how it has lost its way. A terrible failing in Kantian theorising about private law – one which it inherited from law-and-economics – was the belief that the Kantians had to account for every single aspect of private law for their theory of private law to count as successful. See, further, Nicholas J McBride, The Humanity of Private Law, Part I: Explanation (Hart 2019) 28.

  55. On the effectiveness of private law, see my forthcoming paper ‘Private Law in the Ruins’ – written for a book on Private Law and Building Safety, edited by Matthew Bell, Sue Bright, Ben McFarlane and Andrew Robertson – in which I argue that private law has been shattered as a force for good by various damaging social developments.