MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
of expert evidence by asking Mr Curtin to offer his view as to the height at which the relevant drone was being flown. That will not do. Mr Curtin may be a drone user, but he is not an expert qualified to comment on other drone use. He cannot offer an expert opinion, from a photograph or footage, as to how high the drone was flying when it was taken. I raised the issue of the need for expert evidence on the critical issue of the height at which drones were being flown during at least one interim hearing. The Claimants have chosen not to seek to advance any expert evidence in support of this aspect of their claim. Again, that is their choice. 273. The state of the evidence, at the conclusion of the trial, is that, in relation to the claim for trespass by drone usage against “Persons Unknown”, I have no reliable evidence as to the height at which the drones were being flown in the incidents complained of in the evidence. In respect of the claim against Mr Curtin for trespass and/or harassment arising from his use of a drone on 21 June 2022, the only evidence that is available as to the height at which the drone was being flown is that given by Mr Curtin; i.e. at or around 50 metres. 274. Returning to the central issue, the question is whether Mr Curtin’s flying of the drone on 21 June 2022 was a trespass on the land or alternatively part of the course of conduct involving harassment. My conclusions on this are as follows: (1) Mr Curtin’s use of the drone on 21 June 2022 was not a trespass. (2) Based on the authority of Bernstein (see [64]-[71] above), the question is whether the incursion by Mr Curtin’s drone into the air space above the Wyton Site was at a height that could interfere with the ordinary user of the land. Mr Curtin’s drone was flying at or around 50 metres. To put that in context, a building that is 50 meters tall is likely to have between 15-16 storeys. Did flying a drone the size of Mr Curtin’s drone, for a short period, at the height of a 15-16 storey building interfere with the First Claimant’s ordinary user of the land. In my judgment plainly it did not. It is not possible – on the evidence – to conclude whether Mr Curtin’s drone, flying at 50m on 21 June 2022, could even have been seen by the naked eye from the ground. Mr Manning’s evidence was that it was very difficult to see smaller drones higher in the sky. (3) On analysis, and in reality, the Claimants’ real complaint is not about trespass of the drone at all. If the drone had not been fitted with a camera, the Claimants would not be pursuing a claim for trespass (or harassment). The Claimants have attempted to use the law of trespass to obtain a remedy for something that is unrelated to that which the law of trespass protects. The real object has been to seek to prevent filming or photographing the Wyton Site. The law of trespass was never likely to deliver that remedy (even had the claim succeeded on the facts), not least because it is likely that substantially similar photographs/footage of the Wyton Site could be obtained either by the drone avoiding direct flight over the site, flying at a greater height, or, even, the use of cameras on the ground around the perimeter. As I have noted (see [73] above), the civil law may provide remedies for someone who complains that s/he is effectively being placed under surveillance by drone use, but adequate remedies are unlikely to be found in the law of trespass.
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