BDB Pitmans represents The Manchester Ship Canal Company Limited in successful appeal to the Supreme Court

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BDB Pitmans is delighted to have represented longstanding client The Manchester Ship Canal Company Limited (MSCCL) in its successful appeal to the Supreme Court against sewerage undertaker United Utilities Water Limited (UU).

UU had obtained a declaration from the High Court that watercourse owners like MSCCL had no right to bring a court claim in trespass or nuisance when a sewerage undertaker discharged untreated sewage into the canal unless UU was guilty of negligence or deliberate wrongdoing, no matter how frequent or damaging the discharges might be. The High Court held that the only remedy for MSCCL was to complain to Ofwat and the Court of Appeal upheld the High Court’s decision.

Giving judgment this morning, a seven member panel of the Supreme Court unanimously allowed MSCCL’s appeal. The Court found that the Water Industry Act 1991 (WIA), which consolidated sewerage regulation following the privatisation of the water industry, did not exclude common law remedies. Private property rights are fundamental rights protected by common law, and that protection can only be excluded by express words in a statute or necessary implication. The WIA in fact expressly requires sewerage undertakers to exercise their functions in a way that does not cause a nuisance. If the WIA ousted the common law remedies, then victims of unauthorised discharges would be worse off than those suffering from discharges authorised by statute, in respect of which the WIA provides for compensation to be paid. That would be a perverse result and cannot have been Parliament’s intent.

This means that where more and more people are connected to the sewers to the point where the capacity of the system is breached, it remains the responsibility of sewerage undertakers not to cause a nuisance by allowing watercourses to be polluted. The Court acknowledged the impact that legal actions could have on sewerage undertakers (eg requiring them to build or upgrade infrastructure) but, as Lord Reed puts it in the judgment:

‘A successful claim for damages for an incident or incidents of pollution of a watercourse will impose costs on a sewerage undertaker; but the effect is merely to prevent it from externalising the costs of its operations by leaving them to be borne by the victims of its unlawful behaviour.’

The judgment has significant consequences for the water industry and those affected by unauthorised sewerage discharges. Any watercourse owner will now have a right to bring claims in common law nuisance in respect of pollution to their water, whether directly or upstream, and to seek injunctions to restrain polluting activity by any sewerage undertaker and / or damages for the unlawful interference with the watercourse.

Senior Partner Richard Langley, who led the team, said:

‘We are delighted with this result, reversing the decisions in the High Court and the Court of Appeal. After a long and hard fought battle, the Supreme Court has vindicated our client’s claim that it should be entitled to compensation in respect of unlawfully polluting discharges into the canal.’

Richard was assisted by litigation senior associate Judith Smyth legal director Katie Smith, alongside consultants Nicholas Brown and Andy Couch. The team instructed a stellar Counsel team of Blackstone Chambers’ Thomas de la Mare KC and George Molyneaux alongside Six Pump Court’s Charles Morgan and Nicholas Ostrowski.