Brendon International Ltd v Water Plus Ltd
| Jurisdiction | England & Wales |
| Judge | Cadwallader |
| Judgment Date | 20 December 2022 |
| Neutral Citation | [2022] EWHC 3321 (Ch) |
| Docket Number | Case No: BL-2020-MAN-000129 |
| Court | Chancery Division |
[2022] EWHC 3321 (Ch)
HHJ Cadwallader
Sitting as a Judge of the High Court
Case No: BL-2020-MAN-000129
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
BUSINESS LIST (ChD)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Mr Victor Steinmetz (instructed by DLA Piper) for the claimant
Mr James McCreath (instructed by JMW) for the Defendants
Hearing dates: 27, 28, 29 September and 20 December 2022
Introduction
This trial concerned charges for surface water drainage and highway drainage services raised by the second defendant (“United Utilities”) in respect of the period from 22 September 2000 until 31 May 2016, and by the first defendant (“Water Plus”) thereafter. United Utilities was the sewerage undertaker for the area in which the claimant (“Brendon”) has premises. Following the opening of the sewerage retail market, Water Plus provided wholesale/retail services to the customers of United Utilities. Brendon is a limited company established in 1982 which provides international import and export services including freight forwarding and export packing. It is a small company with 30 employees. In 1998 it purchased its current premises at Sankey Valley Industrial Estate, but did not move in to them until September 2000 from its previous premises, after its offices and warehousing had been constructed on site. In 2003 it sold a plot of the land which it had purchased, but bought it back again in 2009.
The claimant naturally discharges surface and foul water from its premises. The foul water discharges into a septic tank within its property, and the surface water discharges into a sewer, the route of which is now agreed to be shown on the plan at page E449 in the trial bundle, and runs under the roads which had been built on the estate, and then under other land to an outfall to a brook. Those roads are, it is now agreed, unadopted, although they have been built to an adoptable standard.
The claimant paid the charges for surface water drainage and highway drainage services until 16 September 2019 and then ceased to do so. It had also been paying for foul water sewage services until it was appreciated that this discharged into a septic tank and not into the sewer, and a refund was made.
This is a dispute about whether the defendants were, and the first defendant is, entitled to charge for the services which they purported to provide, and whether the claimant is entitled to recover the sums which it has paid to them for those purported services.
The issues as pleaded
The claimant's case
The relief which the claimant claimed in its claim form was restitution for unjust enrichment by way of repayment of the sum of £174,395.02, or alternatively £155,404.72 (I will comes to the figures later), or damages for breach of contract and/or statutory duty, and/or common law duty not to overcharge customers or to charge them outside the defendants' statutory powers; a declaration that the claimant is not liable for and that the Defendants are not entitled to levy any charges for surface water and highways drainage in the future, and/or an adjustment of the claimant's account so as to delete any wrongful debits made and to have the resulting credit refunded to its account; in so far as necessary, a correction to the banding charges/drainage/ownership/charging records held by the Defendants, such that no charges will be levied for the Services in the future; together with interest and costs.
The primary basis of the claimant's claim is, in summary, unjust enrichment of the defendants by payments made by the claimant under the mistaken belief until 30 August 2018, that they were providing surface water and highway sewerage services, when in fact they were not, because the sewer into which drainage was occurring was a private sewer. Moreover, most of the site's other occupiers had either not been charged for the supposed services, or had had their payments refunded by the defendants. As a result of the claimant's query about its surface water banding charge, United Utilities undertook a survey of the site on or around 23 January 2018, following which the sewer records for the sewer were changed from private to public, but it had never been validly adopted. United Utilities had failed to provide information to establish that it was public or to explain why it believed it to be public and United Utilities had previously asserted in a number of contexts that it did not have a public sewer there.
The parties agree that if the sewer is and was at all material times private, the defendants would not have been (and would not be) allowed to charge and receive payment from the claimant, as they would not have provided any services to it; and that the public sewer records actually showed the sewer to be private until United Utilities changed them in or around January 2019.
The claimant also relies on the doctrine of total failure of consideration, that is, that no part of the services for which these charges were levied was actually provided, such that the claimant is entitled to its money back. Although this aspect of the claim did not figure largely in argument, it was explicitly not abandoned. The claim for damages for breach of contract and/or statutory duty, and/or common law duty not to overcharge was also pursued at trial.
The defendants' case
The defendants both defended the claim, and although they submitted separate defences, they were not separately represented by the time the trial took place. Water Plus admitted it became a water retailer in May 2016, and explained in its defence that it does not physically provide water supply or wastewater collection. Its primary commercial function is to provide water and wastewater retail services including billing and meter reading services and to act as a conduit between its customers and the relevant provider of water and wastewater infrastructure, in this case United Utilities. This was not in issue. Water Plus relied upon United Utilities' information in relation to the appropriate charges to levy against Brendon.
The defendants contended that the sewer was public, or at least denied that it was private. If the claimant had acted under the belief that the defendants were entitled to be paid, it was denied that the belief was mistaken. The result of the enquiry undertaken by a concern known as RPS Water dated 23 January 2018 had concluded that it was public. The defence of United Utilities stated at paragraph 14 that the basis upon which United Utilities reached that conclusion was as follows: the sewer was reconstructed as a concrete sewer with a diameter of 525mm in or around 2004, having previously been a 225mm diameter sewer. No occupants of units in the area had any records or recollection of having paid for that work. In the premises, it was to be inferred that the reconstruction of the sewer was carried out by the local authority, which at the time was acting as agent for United Utilities in respect of the construction and maintenance of sewers. Accordingly, it was to be inferred both that the sewer was public prior to the works undertaken in or around 2004 (as otherwise the local authority would not have undertaken them) and in any event, the consequence of the reconstruction by the local authority as United Utilities' agent was that the sewer vested in United Utilities pursuant to Water Industry Act 1991 section 179(1)(a), and accordingly was from its reconstruction a public sewer within the meaning of section 219 (1) of that Act. The fact that it was not marked as public on the sewer map would in those circumstances be readily explained by the local authority's having failed to pass on to United Utilities sufficient details of the works undertaken to permit that to happen. In any case, any claim to monies paid before 10 February 2014 was time-barred under the Limitation Acts; and in particular, section 32 of the Limitation Act 1980 did not apply to extend time beyond the usual six years, because the claimant could with reasonable diligence have discovered the mistake before then.
Under CPR Part 18 the claimant requested confirmation whether United alleged that the sewer is not and was not public as a result of any public adoption of it (if any) but that the sewer is and was public, either before its alleged reconstruction in about 2004, or as a consequence of that reconstruction, and if not, for them to identify any additional facts, matters, allegations or arguments which they sought to rely upon. United Utilities responded that it did not allege that the sewer was adopted as the result of its status having been changed on its sewer maps in 2018; but that it was to be inferred that the sewer was public before the works allegedly undertaken in 2004, or alternatively as a result of those works. The basis of that primary contention was, it was said, as follows. If the sewer had not been adopted and remained private as at that date, the local authority would not have undertaken the works in question. The true owner of the sewer would have objected to the works being undertaken, which would have been a trespass. The roads at the site had been adopted as public highways, it was to be inferred. That would not have happened without the sewers, including this sewer, having also been adopted as public sewers. United Utilities alleged that it was to be inferred that the highways had been adopted as public highways because they were constructed to adoptable standards, the street lighting columns were identical to those on nearby adopted highways, and the local authority had in fact maintained those roads. As I have mentioned, by the time of the trial it was accepted, however, that the...
To continue reading
Request your trial
-
Brendon International Ltd v Water Plus Ltd
...ON APPEAL FROM THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS IN MANCHESTER BUSINESS LIST His Honour Judge Cadwallader [2022] EWHC 3321 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL James McCreath (instructed by JMW Solicitors LLP) for the Victor Steinmetz (instructed by DLA......