Members may be interested in the UKSC’s decision in Manchester Ship Canal Company v United Utilities [2024] UKSC 22.

 

In a matter which is currently politically contentious in the UK, the utilities company had discharged foul water into the canal because its treatment systems are inadequate. In past years when the canal was a major shipping lane, that would not have been a concern. However, the canal is now used for pleasure purposes, and the company would rather it not be full of excrement. It sued for nuisance.

 

The utilities company argued, and the CA accepted, that the statutory scheme for private water companies, the Water Industry Act 1991, provided for exclusive remedies in situation of unauthorised discharges (which they accepted, indeed averred, these discharges were). They relied on the HL decision in Marcic [2004] 2 AC 42.

 

The Supreme Court unanimously allowed the appeal. It started (at [15]) with the general principle that public bodies (by which they probably include private entities with special public powers) are subject to the ordinary law (Cooper v Wandsworth, which is probably more appropriate than Entick v Carrginton given this case does not involve the Crown). They also explain the circumstances in which a statute can be taken to authorise a tort (at [16]-[21]). In light of that they then trace the history of statutory sewerage schemes, concluding that the pre-1991 schemes did not oust common law rights, but rather ran with them (at [50]). They concluded that the 1991 Act also provided no authorisation to cause a nuisance by discharging untreated effluent (see [111]) and that the Act does not exclude private liability for doing so (e.g. at [124]). There is an interesting discussion about remedies at [128]-[131], indicating that the 1991 Act may preclude the grant of injunctions, but finding that damages can be awarded both at law and under s.50 SCA 1981.

 

Finally they consider Marcic, and hold (at [135] and [136]) that the liability in question there was one for failing to build a new sewer which would have relieved the flooding of the claimants land (rather than flooding created by the company). As the court explains, this is a fundamental difference, for a positive duty to construct a new sewer can only arise by statute (or, I suppose, contract or assumption of responsibility). Although it is not expressly stated, that would be consistent with the decision in Kent v East Suffolk Rivers [1941] AC 74, that public bodies do not owe a private duty to protect from dangers like flooding.

 

Seems to be the correct decision to me (despite relying on Fearn v Tate many times…)

 

Matthew Hoyle Barrister www.oeclaw.co.uk Switchboard: +44 (0)20 7583 2000         One Essex Court, London Temple London EC4Y 9AR United Kingdom Tel +44 (0)20 7583 2000 clerks@oeclaw.co.uk One Essex Court, Singapore #04-14 Maxwell Chambers Suites 28 Maxwell Road Singapore 069120 Tel +65 6634 1363 singapore@oeclaw.sg           Information in this message is confidential and is likely to be subject to legal professional privilege. If you have received this message in error, please notify me immediately and do not disclose, copy, distribute or retain either the whole or any part of the message or any attachments. If you are not the intended recipient, please telephone (020) 7583 2000 immediately. Regulated by the Bar Standards Board.

 

 

 

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