Scottish Water Business Stream Liminted Against Deodat Chataroo
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi M. Stephen |
| Court | Sheriff Court |
| Docket Number | SA978/14 |
| Date | 28 August 2015 |
| Published date | 10 September 2015 |
SHERIFFDOM OF LOTHIAN AND BORDERS
2015SCEDIN60
Case Number: SA978/14
Judgment by
SHERIFF PRINCIPAL MHAIRI M STEPHEN QC
in appeals
in the cause
SCOTTISH WATER BUSINESS STREAM LIMITED
Pursuers and Cross-Appellants
against
MR DEODAT CHATAROO
Defender and Appellant
Act: Dean of Faculty instructed by Brodies LLP
Alt: Party
Amicus Curiae: D Thomson, Advocate
EDINBURGH, 28 August 2015
The Sheriff Principal, having resumed consideration of the appeal, answers the first question of law in the stated case in the affirmative and the second question in the negative, allows the appeal by the defender and refuses the pursuers' cross-appeal, recalls the sheriff's interlocutor of 9 December 2014 and assoilzies the defender from the claim; finds the pursuers liable to the defender in the expenses of the principal action in the sum of £150 and in the expenses of the appeal procedure in the sum of £250.
NOTE:
1. In this stated case the pursuers are Scottish Water Business Stream Limited who are providers of water and sewerage services, licensed to do so in terms of section 6 of the Water Services (Scotland) Act 2005 ("the 2005 Act"). The pursuers are a separate undertaking to Scottish Water with whom it contracts for the supply of such services and facilities to non-domestic customers. It supplies water, drainage and sewerage services to "eligible premises" as defined in section 27 of the 2005 Act.
2. The defender, Mr Chataroo, is a newsagent who trades from premises in Coatbridge, Lanarkshire. He has occupied the shop premises at 159 Old Monkland Road in Coatbridge since 2005 as the tenant and sole occupier. In April 2014 the pursuers raised small claims proceedings in this court for recovery of the sum of £1,514.93 said to be outstanding in respect of invoices for water, waste water and drainage services provided to the defender's shop since 1 April 2005. The pursuers also seek £70 as late payment compensation in terms of section 5A of the Late Payment of Commercial Debts (Interest) Act 1998. It is averred by the pursuers that the parties entered into a commercial contract for the supply of water and sewerage services to the defender's premises.
3. The defender intimated his intention to defend the action stating that he has no contract with the pursuers and therefore disputes liability to pay the amounts claimed. The sheriff has noted this to be the issue for proof and also notes the defender's intention to counter-claim for the sum of £1,000.
4. The unpaid invoices issued to the defender are in respect of water, waste water and drainage. Scrutiny of the invoices confirms that charges are made and payment demanded under six headings all as set out by the sheriff in the fourth finding in fact. There are both fixed and variable charges for the water supply, waste water drainage and external drainage to the public waste system. The variable charges reflect actual usage which in the case of the water supply is metered. In the invoice this is described as the "volumetric" water or waste water charges. In general, the waste water charge is a percentage (95%) of the metered water usage. The sheriff finds that the shop premises occupied by the defender are served by a water supply and a waste drain. "The supply comprises the piped supply from the water mains to a sink, and the waste drain comprises the drain from the sink to the external drain." The defender has never used or permitted the use of the sink and never wanted to be supplied with these water services. (3) That, in the main, appears to be borne out by the invoices which indicate minimal, if any, volumetric water usage unless that usage has been estimated or consistent with a leak. On the other hand, the charge for property and road drainage is accepted by the defender. (finding in fact 4) Accordingly, the defender in making part payment accepts partial liability but only for the drainage charges. Although the defender did not consent to the water supply or enjoy any benefit from that supply the sheriff finds that he could have water at any time by turning on the tap and those services provided by the pursuers were and continue to be available to the defender for instant use. (finding in fact 5)
5. Against that background, the defender in his appeal challenges the sheriff's finding in fact and law 2 which concludes that the pursuers are entitled to charge the defender for water and waste water services supplied to the premises (being "premises" in terms of the 2005 Act). The defender requested that the pursuers remove the supply, however that involved disconnection works being required for which there would be a cost which the defender was unwilling to pay. He was, however, prepared to share the cost with the pursuers. Either due to lack of agreement as to splitting the cost or misunderstanding no disconnection took place. Therefore, as the defender has not brought the supply arrangements to an end he is liable for the charges set out in the statement of account (5/1 of process). This is the statutory basis for the pursuers' claim. Further, the defender challenges the sheriff's decision to assume jurisdiction in this action. The defender challenged the jurisdiction of the court on the basis that there was no contract between him and the pursuers which would entitle the pursuers to found jurisdiction in the place where payment of the sums due by the defender ought to have been made namely the defender's registered office in Edinburgh. Neither the pursuers nor the sheriff were entitled to assume that this court had jurisdiction.
6. The pursuers have cross-appealed against the sheriff's findings in fact and law 1 and 3. They argue that the sheriff erred in finding that there was no contract express or implied between the parties which would entitle the pursuers to claim payment in terms of the contract at this court.
Defender's Appeal
7. Mr Chataroo appeared on his own behalf without legal representation. He presented four arguments:- firstly, that there was no contract between the parties. No written contract has been produced because no contract exists. The necessary agreement or consensus was lacking and could not, on the facts, be implied. Secondly, there was no basis at all for the charges made by the pursuers in respect of water and waste water. No water had been used and therefore there was no basis for either charge in respect of water and waste water. The pursuers had not proved that the water pipes were even connected. Thirdly, the sheriff failed to deal with jurisdiction. Jurisdiction had been an issue from the outset and the defender had addressed the matter of jurisdiction with the sheriff prior to proof. If there was no contract this court had no jurisdiction. The sheriff therefore erred. Neither the pursuers nor the sheriff had followed the law on jurisdiction. The domicile of the defender must be taken as the proper and correct place of jurisdiction. There was no contract that would allow special jurisdiction in Edinburgh Sheriff Court. The sheriff was wrong to say that the defender had submitted to the jurisdiction of the court by his appearance and the sheriff erred in applying exclusive jurisdiction. If there was any ground of action against him, which is disputed, the action should have been raised in his local sheriff court at Airdrie. Fourthly, the appellant's Article 6 and 16 rights under the European Convention of Human Rights had been infringed. Finally, the defender contended that if the pursuers considered they had a proper basis upon which to charge the defender and knowing that the charges were disputed there ought to have been a referral to a panel in terms of section 16 of the 2005 Act for the purpose of setting any terms and conditions.
Submissions on behalf of Scottish Water Business Stream Limited
8. The Dean of Faculty, on behalf of Scottish Water Business Stream Limited, replied to the defender's appeal and then made submissions in support of the cross-appeal by the pursuers as to the sheriff's findings in fact and in law relating to the contractual basis of the claim for payment (1 and 3).
9. As a preface to his submissions the Dean of Faculty pointed out that this was but one of a not insignificant number of debt recovery cases raised by the pursuers in this court. As this case is special on its facts evidence in other cases may well differ materially and there was therefore no agreement that this was a "test" case.
10. Against the factual background of the defender being the sole occupier of the premises since 2005 and payment of the invoices in full up to 2009, the Dean of Faculty addressed me as to the statutory basis for charging non-domestic customers for the supply of water, waste water and drainage services. The key provision is section 6 of the 2005 Act which authorises a person (being a licence provider) to do a number of things in connection with that licence. Section 6 (1) is of particular importance to the supply of water. The licence provider is authorised to make arrangements with the occupier of any eligible premises for or in relation to the supply of water to the premises through the public water supply system and to fix and recover charges for that supply "to any premises in respect of which the person has made such arrangements". In the course of submissions I was referred to the case of Daymond v South West Water Authority [1976] AC 609. The meaning of the expression "make arrangements" is important. The case of Daymond was concerned with the meaning of section 30 of the Water Act 1973, an English Statute. The House of Lords considered the apparent wide powers of charge under the statute and concluded that the Water Authority is entitled to charge those receiving services. In the case of Anglian Water Authority v Castle 1983 W.L. 216 784 no contract existed for the supply of water or any other service. Although the court found that there was no room for...
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