Pride of Derby and Derbyshire Angling Association Ltd and Earl of Harrington v British Celanese Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DENNING,LORD JUSTICE ROMER,The MASTER OF THE ROLLS,The Master of the rolls,The master of the rolls |
| Judgment Date | 15 December 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J1215-4 |
| Docket Number | 1951. P. No. 1260. |
| Court | Court of Appeal |
| Date | 15 December 1952 |
[1952] EWCA Civ J1215-4
The Master Of The Rolls
(Sir Raymond Evershed)
Lord Justice Denning and
Lord Justice Romer.
In The Supreme Court of Judicature
Court of Appeal
Sir ANDREW CLARK, Q.C., and Mr G.T.HESKETH (instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr E.H. Nichols, Town Clerk of Derby) appeared on behalf of the Appellants, Derby Corporation.
Mr H.E. SALT, Q. C., Mr HAROLD I. WILLIS, Q. C., and Mr S.I.LEVY (instructed by Mr R.A. Finn) appeared on behalf of the Appellants, British Electricity Authority.
The Hon. CHARLES RUSSELL, Q.C., and Mr G.H. NEWSOM and Mr J.A. GIBSON(instructed by Messrs Marchant, Gerrish & Newington) appeared on behalf of the Plaintiffs (Respondents in the first two appeals, and Appellants in the third appeal).
Mr H.F.J. TEAGUE (instructed by Messrs Linklaters & Paines) appeared on behalf of the Respondents, British Celenese Limited
This is an action for pollution of the River Derwent east of Borrowash Bridge, and up to the point of its confluence with the River Trent. The claim also extended to some pollution of the River Trent itself.
There are two plaintiffs in the action, first The Pride of Derby and Derbyshire Angling Association Limited - which, as the name implies, are concerned with the state of the fishing in the stretch of the river in question - and second, the Earl of Harrington, who is a riparian owner on a considerable part of the river concerned. As such riparian owner, his common law rights in certain respects are more extensive than the rights of the first plaintiffs, a point which is relevant to the appeal of the British Electricity Authority, to which accordingly I shall in due course return.
There were originally four defendants to the action: British Celense Limited, the Mayor, Aldermen and Burgesses of the County Borough of Derby, the British Electricity Authority ( East Midlands Division) and Midland Tar Distillers Limited. The last-named Defendants appear to have discontinued operations in this neighbourhood at an early stage, and the proceedings were accordingly stayed against them. The action proceeded to trial against the first three defendants.
As was to be expected, a large part of the learned Judge's careful and (if he will allow me to say so) altogether admirable Judgment is concerned with proof of the pollution on the part of each of the three defendants. He concluded that the material stretch of the river was very gravely polluted, and was in a state such as extinguished therein all fish life, and also all fish food. The foul and stinking character of the river was vividly illustrated by the learned Judge in the course of his Judgment.
He also concluded that although the first defendants, British Colenese Limited, were the most serious offenders, the second and third defendants substantially contributed to the pollution, and accordingly that all three defendants were liable to the plaintiffs. The Judge rejected the proposition that since all defendants were individually polluting, none could be made liable, a proposition which seems to bear some analogy to the principle that a man armed with several umbrellas must be taken to have no umbrella at all. We are not concerned with these matters because there is no appeal in respect of any of them.
As to the Derby Corporation, the learned Judge said at page 17 of the transcript of the Shorthand Note of his Judgment: "I canot doubt, having heard the evidence, that the solids put into the stream by the Corporation are a substantial contribution to the state of things existing in the plaintiffs' waters". As to the third defendant, he said at page 23: I find, therefore, that the Power Company's activities in the present state of the river sensibly contribute to the harm that is being done to the plaintiffs. Moreover, I accept the evidence of Dr Steven, another scientist called by the plaintiffs. that even if this we're a clean stream, these activities, though perhaps not harmful to the plaintiffs in the winter months, would as harmful in the summer when the natural temperatures are higher"
Finally, at the end of his Judgment, I find this sentence at page 442 "In the upshot, therefore, I hold that the plaintiffs have established a good cause of action against both these defendants, as they admittedly have against the first defendants".
The order that the learned Judge eventually made was as follows: "This Court Doth Order that each of them the defendants British Celanese Limited (hereinafter called the defendant Company) the defendants The Mayor Aldermen and Burgesses of the County Borough of Derby (hereinafter called the defendant Corporation) and the Defendant British Electricity Authority (hereinafter called the"defendant Authority) (which defendants are in this Order collectively referred to as the said defendants) be perpetually restrained from causing or permitting (whether by their respective servants or agents or workmen or otherwise howsoever) any effluent to flow or pass from their respective premises in the Country of Derby in the pleadings mentioned into the River Derwent
"(a) so as sensibly to alter (either by itself or in combination with any effluent discharged into the said River by any of the said defendants or any other person) the quality (including the temperature) of the waters of the said River Derwent or the waters of the River Trent where the same flow past or over any part to the plaintiffs' premises as mentioned and defined in the statement of claim to the injury of the plaintiffs or either of them or their respective sequels in title or of any person or persons claiming under or through them or any of them in respect of the plaintiffs' said premises or any part thereof, or
"(b) so as to interfere (either by itself or in combination as aforesaid) with the enjoyment by the plaintiffs or either of them or their respective sequels in title or any person or persons claiming under or through them or any of them of the right of fishing in any part of the plaintiffs' water as mentioned and defined in the statement of claim". Then after referring to certain undertakings, it was ordered: "That the operation of the foregoing injunction be suspended until the 30th April 1954", that is, approximately two years from the date of the order.
The learned Judge ordered an Inquiry as to damages. The order proceeds: "And the said defendants by their Counsel consenting to this apportionment. It is ordered that the damages which upon the taking of such Inquiry shall be certified as aforesaid be paid by the said defendants in the following proportions, namely: The defendant Company" - that is British Celenese Limited - "one half The defendant (Derby) Corporation one quarter The defendant (British Electricity) Authority one quarter". I need not refer to the rest of the order which related to costs and matters of that kind save to note that at the end of it there was included a direction: "And the parties are to be at liberty to apply as they may be advised". The apportionment of the obligation to pay damages will be noted. As each of the three remaining defendants are substantial, the plaintiffs are content with the result so long as neither of the appeals now before us succeeds. If either or both should succeed, then the plaintiffs have appealed, cut their appeal has not yet been called on.
For reasons which I have already stated, it is not necessary for me to go in detail into the facts of the case. It will suffice for this Judgment if I confine myself to a reference to the sketch plan which was accepted by the appellants and respondents before us as sufficiently and accurately illustrating the subject matter of the action.
The plan shows the course of the River Derwent from the point where it leaves Derby at Long Bridge until a point some few miles after its confluence with the River Trent. After a mile or more of its course, the river reaches a point called Raynesway Bridge, and on the finding of the learned Judge, at that point the waters of the Derwent were unpolluted. The river then passes through an area which is the property of the Derby Corporation. The course of the river is what it takes a loop to the north; but there has been constructed across the base of the loop & channel which enables the water to go direct across the loop's base. At the bottom south-eastern corner of the loop there is a storm water outfall, which in this case has been called outfall "A". It may be stated that the method of sewerage and drainage adopted by the Derby Corporation is one that combines both the storm and the foul water in a single sewer, and at that point (outfall "A") there is provision so that in the event of flood conditions, the effluent - that is, storm water with untreated sewage - may be discharged, so far as is necessary to relieve pressure, direct intothe Derwent; but save so far as it is so discharged, the contents of the sewer are carried northward through an artificial sewer to a point at the top of the loop where there is another and similar outfall. To the north again of that point are the sewage disposal works of the Derby Corporation, erected, as I have indicated, upon their own land and consisting of filters, tanks and the like. From the sewage disposal works there is a pipe or drain which carries the effluent into the River Derwent at a point approximately a mile further downstream from the second storm water outfall...
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