Hanifa Dobson and Others v Thames Water Utilities Ltd and The Water Services Regulation Authority
| Jurisdiction | England & Wales |
| Judgment Date | 24 August 2007 |
| Neutral Citation | [2007] EWHC 2021 (TCC) |
| Docket Number | Case No: HT-06–04 |
| Date | 2007 |
| Year | 2007 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2007] EWHC 2021 (TCC)
the Hon. Mr. Justice Ramsey
Case No: HT-06–04
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
John Hand QC;John Bates (instructed by Hugh James) for the Claimants
David Hart QC: Michael Daiches (instructed by Osborne Clarke) for the Defendants
Josh Holmes (Instructed by Ofwat) for the Interveners
Hearing dates: March 19,20,21, 2007
The Hon, Mr Justice Ramsey:
Introduction
1. These proceedings between multiple claimants (“the Claimants”) and Thames Water Utilities Limited (“Thames Water”) arise from complaints made by the residents of Isleworth and Twickenham who live in the vicinity of the Mogden Sewage Treatment Works (“Mogden STW”) situated in Mogden Lane, Isleworth, Middlesex.
2. A Group Litigation Order dated 21 December 2005 applies to these proceedings. The Claimants are divided into two categories: those who have occupied properties as owners or lessees and those who have occupied without any legal interest in the properties.
3. The Claimants served a Group Statement of Case on 9 March 2006 in which they pleaded that odours and mosquitoes from the Mogden STW have caused a nuisance; that they have been caused by the negligence of Thames Water and that Thames Water have breached rights under Article 8(1) of and Article 1 of the First Protocol to the European Convention on Human Rights 1950. As a result the Claimants seek damages for nuisance, negligence and damages under the Human Rights Act 1998 (the “ HRA”) for breach of their Human Rights.
4. In the Defence to the Group Statement of Case, Thames Water raised various threshold defences to the claims. In particular, it contended that complaints about odour or mosquitoes from Mogden STW were complaints of a failure of its duties under s.94(1)(b) of the Water Industry Act 1991 (the “WIA”) effectually to deal with the contents of sewers at Mogden STW and/or a failure to treat wastewater received and discharged by Mogden STW in accordance with the Urban Waste Water Treatment Regulations. Thames Water contends that such failures are enforceable under s.18 of the WIA by the Water Services Regulation Authority (“Ofwat”), which was substituted for the Director of Water Services by s. 34 of the Water Act 2003.
5. As a result, Thames Water submits that no common law remedy or remedy under the Human Rights Act lies to enforce those duties, whether in nuisance, negligence, nuisance by reference to negligence or under the Human Rights Act because such causes of action are precluded by the decision of the House of Lords in Marcic v Thames Water Utilities Ltd. [2004] AC 42. In addition Thames Water raises various other defences in relation to damages and limitation.
6. Because these proceedings raise matters which concern the duties of a sewerage undertaker under the WIA and the extent to which remedies involving Ofwat precluded other causes of action, Ofwat applied for permission to intervene in particular in relation to issues arising from the decision in Marcic. I granted permission on 27 October 2006 under CPR r 19.2.
7. Directions were given for the identification and formulation of preliminary issues and for the agreement of any necessary factual assumptions. The final formulation of the issues was set out in an order dated 24 January 2007 which included at Annexure 1 the factual assumptions and legislative provisions on which the trial of the issues was to be based.
8. Written submissions were provided on behalf of the Claimants, Thames Water and Ofwat and a hearing limited to oral submissions was held on 19, 20 and 21 March 2007.
9. Mr John Hand QC and Mr John Bates appeared for the Claimants; Mr David Hart QC and Mr Michael Daiches appeared for Thames Water and Mr Josh Holmes appeared for Ofwat.
10. The issues are conveniently divided into three categories:
(1) The Marcic Issues (issues 1 to 5);
(2) Damages Issues (issues 6 to 11);
(3) Limitation Issues (issues 12 to 14).
The Marcic Issues
11. The fundamental question which arises on issues 1 to 5 is the extent to which a common law remedy exists given the statutory provisions in s.94(1) of the WIA. This issue requires an analysis of those common law remedies and the provisions of the WIA in the light of the decision of the House of Lords in Marcic v Thames Water Utilities Ltd [2004] AC 42.
12. In Marcic, a claim was made by Mr Marcic against Thames Water in respect of flooding to his property from an external sewer. He sought a mandatory order compelling Thames Water to improve its sewerage system. In addition he sought damages. He relied on a common law cause of action in nuisance and on Article 8(1) and Article 1 of the First Protocol of the European Convention of Human Rights 1950, as set out in Schedule 1 to the Human Rights Act 1998.
The Decision in Marcic
13. It is convenient to make some general observations on the decision in Marcic before considering the issues which I have to determine.
14. In the House of Lords, the two main speeches were by Lord Nicholls of Birkenhead and Lord Hoffmann. Lord Steyn and Lord Scott of Foscote agreed with both of those speeches. Lord Hope of Craighead agreed with the speech of Lord Nicholls but set out his own reasons in respect of Article 8(1) and Article 1. In summary, the House of Lords held that Mr Marcic could not succeed either on the basis of nuisance or under the Human Rights Act.
15. In relation to nuisance, Lord Nicholls held at paras 33 and 34 that the “ common law of nuisance should not impose on Thames Water obligations inconsistent with the statutory scheme” and that Mr Marcic's claim was, in effect, that “ Thames Water ought to build more sewers”. He said at para 35 that:
“Individual householders may bring proceedings in respect of inadequate drainage only when the undertaker has failed to comply with an enforcement order made by the Secretary of State or the director. The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the director was intended to discharge when questions of sewer flooding arise.”
16. Lord Hoffmann said at para 64 that under the WIA and under previous legislation “ the question of whether more or better sewers should be constructed has been entrusted by Parliament to administrators rather than judges” and that “ These are decisions which courts are not equipped to make in ordinary litigation”. He said at para 70 that the WIA “ makes it even clear[er] than the earlier legislation that Parliament did not intend the fairness of priorities to be decided by a judge. It intended the decision to rest with the Director, subject only to judicial review. It would subvert the scheme of the [WIA] if the courts were to impose upon the sewage undertakers, on a case-by-case basis, a system of priorities which is different from that which the Director considers appropriate.”
17. In Marcic the relevant provision of the WIA was section 94(1)(a) which provides:
“ (1) It shall be the duty of every sewerage undertaker-
(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere)… as to ensure that that area is and continues to be effectually drained.”
18. Section 94(3) of the WIA provides that “ The duty of a sewerage undertaker under subsection (1) above shall be enforceable under section 18 above” by Ofwat.
19. Under section 18(1) if Ofwat is satisfied that the company is contravening or is likely to contravene any statutory requirement which is enforceable under section 18 then Ofwat shall by a final enforcement order make such provision as is requisite for the purpose of seeking compliance with that requirement.
20. Although section 18(1) indicates that Ofwat “ shall” make a final enforcement order the mandatory nature of that requirement is reduced by two provisions. First, under section 18(2) Ofwat may, instead of making a final order, make a provisional enforcement order. Secondly, section 19(1) provides that, in summary, Ofwat shall not be required to make an enforcement order if satisfied that the contraventions are of a trivial nature or that the company has given and is complying with an undertaking or, importantly, that the duties imposed on Ofwat by Part I of the WIA precludes the making of an enforcement order. The provisions of Part I impose various requirements on the manner in which Ofwat can perform its duties which take into account wider considerations in relation to such matters as finance and charging, the position of all customers and environmental considerations.
21. In Marcic therefore the House of Lords held that Mr Marcic could not bring a cause of action based on nuisance or breach of Human Rights in relation to the duty to provide, improve and extend the system of public sewers under section 94(1)(a) of the WIA.
22. In this case the question raised is whether that “ Marcic principle” applies to all the duties under section 94(1) and, in particular, those under section 94(1)(b) and, if so, whether that precludes the Claimants’ pleaded causes of action based on nuisance, negligence and breach of Human Rights.
Nuisance
23. The cause of action in nuisance alleged in Marcic was based on a line of authority built on the decision in Sedleigh-Denfield v. O'Callaghan [1940] AC 880, as applied in Goldman v. Hargrave [1967] 1 AC 645 and Leakey v. Natural Trust [1980] QB 485, with a similar approach being adopted in Holbeck Hall Hotel Ltd v. Scarborough BC [2000] QB 836 and...
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