ABSTRACT
A second factor in assessing the nature of the current debate is recent case law adopting a broader
view of Hunter. In Pemberton v Southwark LBC,107 the Court of Appeal extended the protection of
Hunter to ‘tolerated trespassers’108 with an exclusive right to occupy the premises. This term
derives from Burrows v Brent LBC,109 where the House of Lords was careful to distinguish such
occupants from tenants or licensees. Nevertheless, the Court in Pemberton held that, bearing in
mind the claimant’s exclusive possession and the policy reasons which led to the evolution of this
special status, the claimant would be deemed to have a sufficient interest to sue for nuisance or
trespass.110 Whilst this is a limited extension of Hunter, it does indicate that, even at common law,
the question of standing is not set in stone. Further, it should be noted that, in reaching its
judgment, the Court accepted Article 8 as a ‘relevant factor’ in determining whether the claimant
Examination of the law is also assisted by consideration of Hunter by the Commission. The case
under consideration in Khatun v United Kingdom112 related to dust emanating from construction
work in the London Docklands, and raised again the question of who could sue. Applicants
included non-property owning spouses, children, other relatives and lodgers. The Commission
noted that:
On this basis, the applicants could raise a complaint under Article 8. However, the Commission
ruled that the defendants’ activities had pursued a legitimate and important aim. Given the
importance of the public interest in the development of the London Docklands and the limited
nature of the interference, a fair balance had been achieved under Article 8(2).115 Article 8 is a
qualified right and the defendant will be given the opportunity to justify his or her interference with
the parties’ rights. The impact of the Convention must therefore be judged in the light of the
potential ability of the defendant to prove that the correct balance has in fact been struck between
the competing interests in his or her case. Nevertheless, as seen in Marcic above, the burden is on
the defendant, and it will not necessarily be an easy task to convince the court that the interference
Finally, there remains the difficult question of horizontal effect. This factor will have an important
role in determining the extent to which the Act will be able to challenge existing common law
principles. Section 6 clearly states that ‘it is unlawful for a public authority to act in a way which is
incompatible with a Convention right’. The term ‘public authority’ is only partially defined in the
Act.117 It is uncontroversial that it will include statutory undertakers such as Thames Water in
Marcic and local authorities, but the question remains whether it will be confined to this limited
number of defendants. If, as has been suggested by a number of academics, the Act imposes a duty
on courts, as ‘public authorities’, to give judgment in a ‘convention-compliant’ manner, its impact
will be significant. Not only will the Act apply to public bodies, but will influence, to a greater or
lesser extent, judgments involving all defendants. It must be stated that this question has yet to be
resolved. The point was not argued in McKenna118 and there is an ongoing academic debate as to
the effect of the Act on actions between private individuals.119 However, recent case law suggests
that the courts are moving towards acceptance of at least indirect horizontal effect, that is, that the
law should be interpreted in a manner compatible with Convention rights.120 For example, in the
well-known Court of Appeal decision in Douglas and Others v Hello! Ltd,121 Keene LJ remarked that:
Dame Elizabeth Butler-Sloss P in Venables v News Group Newspapers Ltd123 gave further support to
this view, commenting that ‘[t]he duty on the court, in my view, is to act compatibly with
Convention rights in adjudicating upon existing common law causes of action’.
