Royal Borough of Kingston-Upon-Thames v Derek Moss
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] EWHC 3261 (Ch) |
| Date | 29 November 2019 |
| Docket Number | Case No: PT-2018-000194 |
| Court | Chancery Division |
[2019] EWHC 3261 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Case No: PT-2018-000194
Ranjit Bhose QC and Ruchi Parekh (instructed by Sharpe Pritchard LLP) for the Claimant
Martin Westgate QC and Tom Cleaver (instructed by Deighton Pierce Glynn) for the Defendant
Hearing dates: 25, 28 and 29 October 2019
Judgment Approved by the court for handing down
Introduction
Since 1 April 1990, in accordance with the Water Act 1989 and, later, the Water Industry Act 1991, Thames Water Utilities Ltd (“TWU”) has been the water and sewerage undertaker in relation to properties within the Royal Borough of Kingston-upon-Thames (“Kingston”). In that period, Kingston has been the owner of a large number of council houses and flats, most of which are let to its tenants on secure tenancies within the meaning of the Housing Act 1985. I will refer to these tenants as council tenants to distinguish them from long leaseholders of flats, who are not relevant in the present context. Under the Water Industry Act 1991, TWU is entitled to charge for the supply by it of water and sewerage services to premises which benefit from such services and including, therefore, the premises occupied by Kingston's council tenants. This case is concerned with those houses and flats where the supply of water is not metered.
From 14 January 2003 until 3 August 2017, arrangements between TWU and Kingston have been governed by a written agreement dated 14 January 2003 (“the 2003 agreement”). In summary, under the 2003 agreement and/or as a result of that agreement, TWU does not bill Kingston's council tenants for water and sewerage charges in relation to the water and sewerage services provided to their premises but instead bills Kingston for such charges. Under the 2003 agreement, Kingston pays the charges made by TWU for the relevant premises but the amount of the charges is reduced to reflect an agreed “voids allowance” (of 3.5% of the charges) and TWU and Kingston have also agreed that Kingston is entitled to “a commission” (of 9.3% of the charges less the voids allowance) which entitlement is set against the amount of the charges otherwise payable and this results in a reduction of the sum paid by Kingston to TWU.
The Defendant, Mr Moss, is a secure weekly tenant of a flat where Kingston is his landlord. He was granted a tenancy of the flat in October 1999 and the terms of that tenancy were varied with effect from 1 September 2003. In summary, both the terms of the original tenancy agreement and the terms as varied provide that Mr Moss is obliged to pay to Kingston “water charges” which are to be the sums payable for the water and sewerage services provided to the flat. The original terms referred to “the actual amount payable for the premises” and the varied terms referred to “the exact amount payable for the property to the water authority”.
Against this background, Mr Moss contends that the amount of “water charges” which he is liable to pay to Kingston is in accordance with TWU's tariff for the water and sewerage services provided to his flat, less the voids allowance and less “the commission” referred to in the 2003 agreement. Kingston disputes this. It contends that it is entitled to recover a water charge from Mr Moss by reference to TWU's tariff for the water and sewerage services and without reducing that charge to reflect the fact that it has agreed a voids allowance and a “commission” with TWU.
Mr Moss puts his case in two ways. The first way is that he submits that the 2003 agreement involved TWU providing water and sewerage services to Kingston and his tenancy agreement involved Kingston in providing water and sewerage services to him. He then submitted that the arrangement between Kingston and himself is governed by the Water Resale Orders 2001 and 2006 made under section 150 of the Water Industry Act 1991. It was then argued that the effect of those Orders was that the charge payable by Mr Moss to Kingston should be reduced to reflect the fact that the 2003 agreement provided for Kingston to have the benefit of a voids allowance and a “commission”.
The second way in which Mr Moss puts his case is to rely on the terms of his tenancy agreement, both the original terms referring to “the actual amount payable” and the varied terms referring to “the exact amount payable”. He submits that “the actual amount” and “the exact amount” are to be arrived at by deducting from the charge otherwise due the amount of the voids allowance and the “commission”.
The issue in this case, which is raised by the first way in which Mr Moss puts his case, does not arise in this case for the first time. The same issue was raised in Jones v Southwark LBC [2016] PTSR 1011, which was decided by Newey J (as he then was) on 4 March 2016. In that case, the London Borough of Southwark had entered into an agreement with TWU which was in essentially the same terms as the 2003 agreement. In that case, the court had to consider whether that agreement provided for Southwark to collect water charges as agent for TWU or whether the effect of the agreement was that TWU was providing water and sewerage services to Southwark. Newey J held that Southwark was not acting as agent for TWU and, accordingly, that TWU was providing water and sewerage services to Southwark. Newey J then concluded that when Southwark charged its secure tenant, Ms Jones, for water and sewerage services, the case came within the Water Resale Order 2006 and that Southwark had overcharged Ms Jones because it had not given Ms Jones a reduction in the charges otherwise payable to reflect the fact that Southwark had received a voids allowance and a “commission” from TWU. This meant that Ms Jones had overpaid Southwark for some years and that she was entitled to recover the overpayments. I add that Newey J decided a further point in favour of Ms Jones arising out of the terms of the charges scheme made by TWU under section 143 of the Water Industry Act 1991. That further point also arises in the case before me.
I was told that Southwark did not appeal the decision of Newey J. Instead, in accordance with that decision, they calculated the amount of overpayments made by all their tenants and paid to their tenants a total of £28.6 million as repayment of previous overpayments by those tenants.
In the present case, I am asked to come to a different conclusion from Newey J. It is said on behalf of Kingston that when I come to construe the 2003 agreement, I will be assisted by certain background facts and matters which were not available in the Southwark case. Further, it seems that some of the arguments relied upon by Kingston were not relied upon by Southwark in that case.
Insofar as the background facts in evidence in this case are different from those in evidence in the Southwark case, I plainly must consider that evidence and the submissions made in relation to it. Further, if Kingston relies on arguments which were not put forward in the Southwark case, then I consider that I ought to decide what to make of those arguments and give effect to my view. However, quite apart from possibly different evidence and possible new arguments, I am invited by Kingston not to follow Newey J's decision on the ground that it is wrong. Kingston accepts that one High Court judge ought normally to follow an earlier decision of another High Court judge. Both counsel submitted to me that I ought to follow the earlier decision on a point which was argued in the earlier case unless I was convinced that the decision was wrong. This formulation was taken from R v Greater Manchester Coroner ex parte Tal [1985] 1 QB 67. I drew attention to a slightly different formulation of the approach put forward by Lord Neuberger PSC in Willers v Joyce (No 2) [ 2018 AC 843 at [9] where it was said that I should follow an earlier High Court decision “unless there is a powerful reason for not doing so”. I prefer this formulation to the earlier one as it permits the court to take into account factors, which may be material to what it should do, which are not confined to considering how convinced one is that the earlier decision is wrong. Both counsel then agreed that I should seek to apply the second of these formulations.
Mr Westgate QC (leading Mr Cleaver in this case) had appeared for the tenant in the Southwark case and his arguments had prevailed in that case. He did not invite me to curtail the argument in the present case and in particular he did not submit that I should cut through the argument, decide in favour of Mr Moss and, if I thought it appropriate, give Kingston permission to appeal to the Court of Appeal where Kingston could run its arguments that the earlier decision was wrong. This meant that the principle that I should normally follow an earlier High Court decision has not resulted in any saving of court time as all of the arguments which were run in the Southwark case have been run again before me and, indeed, further arguments have been added.
The parties relied on a number of witness statements and two of those witnesses gave oral evidence and were cross-examined. In the event, this evidence does not play any part in my reasoning in relation to the matters which I have to decide and I do not need to refer to it further.
Mr Bhose QC and Ms Parekh appeared on behalf of Kingston and, as I have indicated, Mr Westgate QC and Mr Cleaver appeared on behalf of Mr Moss. The case has been extremely well argued and I am grateful to all counsel for the considerable assistance which they gave me.
The 2003 agreement
For convenience, I have set out the full terms of the...
To continue reading
Request your trial
-
The Mayor & Burgesses of the Royal Borough of Kingston-upon-Thames v Mr Derek Moss
...the terms of the 2003 agreement, was a water re-seller before it was varied in 2017. Morgan J held that it was. His judgment is at [2019] EWHC 3261 (Ch). Like the judge, I have set out the text of the agreement in an Appendix to this judgment. It is common ground that if Kingston was a wat......