The Defendants (Skyviews and General Ltd) flew over the Plaintiff’s (Lord Bernstein) residence in order to capture an aerial photograph of it. The Plaintiff claimed damages for the alleged trespassing the Defendants committed upon wrongfully entering the airspace above his property and/or an actionable invasion of his right to privacy they committed by taking the photograph without his consent, as well as an injunction which restricts the Defendants from entering his premises (or the airspace above them) and halting them from taking unauthorised photographs of his house. Also, the Plaintiff requested delivery or destruction of the photographs already taken.
The jury held that the burden to prove that the Defendants entered the airspace above the Plaintiff’s property falls on the Plaintiff. A definition of airspace was given as “airspace only extends up to a height which is necessary for the full enjoyment of the land and of any erections on the land, and beyond that point, an occupier may only sue in nuisance”. Also, conditions were imposed as to the rights of an owner over airspace as “a mere entry into airspace above private land is not actionable unless it causes harm, danger or inconvenience to the occupier, in which case there is a cause of action in nuisance”. Taking a photograph was regarded as an “ordinary incident” under Section 40 of the Civil Aviation Act 1949 and thus not actionable for trespass. The Act uses the wording “by reason only of the flight”; for an action of trespass or nuisance, a tort must be committed by the aircraft. Furthermore, it was noted that even if trespass had occurred, the absence of an injunction would not cause any harm to the Plaintiff.
Subsequently, as there was no infringement of the Plaintiff’s rights in airspace, his action failed and the judgment was in favour of the Defendants.
Defendant – A person who has been accused and formally charged with an offence and is undergoing trial procedures within the court system
Plaintiff – a person who brings a case against another in a court of law
 – Lord Bernstein v Skyviews and General Ltd  QB 479