Surrey Searches Ltd and Others v Northumbrian Water Ltd

Hearing dates: 15 November 2023 – 19 December 2023

Draft judgment circulated: 21 June 2024

APPROVED JUDGMENT

A. INTRODUCTION

This judgment follows the ‘stage 1’ trial of certain issues arising in these proceedings.

The Parties

The Claimants are personal search companies ( PSCs) or their assignees who undertake different types of searches for use in real property sale and purchase transactions, both residential and commercial. Using different sources of information available to them, they compile personal search reports ( PSRs) (commonly known as ‘regulated’ reports) for sale to their clients, many of which are solicitors' firms acting for property purchasers and/ or their mortgagees. For information concerning water and drainage, the Claimants have sought information from the water and sewerage company ( WASC) for the area in which the relevant property is located.

For the purpose of this stage 1 trial, a number of ‘lead’ Claimants have been identified, comprising (i) P & S Gradwell Limited (formerly trading as PSG Gateshead) (ii) Whitefield Legal Services Limited (iii) Property Information Exchange Limited (trading as PIE, PIEX, poweredbypie, Brighter Law, and Homeinfo UK) (iv) Simon Gill & (B) Uzma Bozai (trading as PSG Cornwall) (v) Searchflow Limited (vi) Scrutinor Limited (in its own right and as assignee of Corner House Legal Services Limited) (vii) NSS Franchising Limited (trading as National Search Service) (viii) Michael and Jayne Chetwynd (as assignees of Libmos Limited (formerly trading as PSG Chesterfield)) (ix) TM Property Search Limited (x) Conveyancing Data Services Limited (xi) Dye & Durham (UK) Limited (as assignee of Index Property Searches (East Central) Limited (trading as Index Property Information and Index East Central)), Index Property Information Limited and Stanley Davis Group Limited (trading as Stanley Davis Group Limited and York Place) (xii) Index East Anglia Limited (trading as Index Property Information) (xiii) Index West Midlands Limited (trading as Index Property Information and Index West Midlands Limited) and (xiv) Index Property Information Lincolnshire Limited (trading as Index Property Information).

In this judgment, I refer to the First to Third, Seventh to Tenth and Twelfth Defendants collectively as the “ Eversheds Defendants”. The Sixth Defendant was separately represented as were (together) the Fourth and Eleventh Defendants. I refer to the Defendants individually either numerically or by the abbreviations in the table below. So, for example, the Third Defendant, Yorkshire Water Services Limited, is referred to in this judgment as D3 or YW.

D1–D4 and D6–10 are the nine English WASCs, licensed to provide water and sewerage services as statutory undertakers under the Water Industry Act 1991 ( WIA). They are subject to various statutory obligations, some identified below, and are subject to regulatory oversight, including by the Office of Water Services ( Ofwat).

D5 is no longer a Defendant, the claim against that WASC having settled before trial.

D11 and D12 are not WASCs but are commercial providers of so-called ‘official’ water and drainage information search reports known as a CON29DW Drainage and Water Enquiry ( CON29DW) for residential property transactions and a Commercial Drainage and Water Enquiry ( CommercialDW) for commercial property transactions. They are associated with, respectively, D4 and D8. Whenever the CON29DW shorthand is used in this judgment in a general sense, it should be considered to encompass Commercial DWs unless otherwise indicated. In addition to their activities as statutory water and sewerage undertakers, the WASC Defendants (save for D4 and D8) also sold CON29DWs and Commercial DWs on a commercial basis.

Although closely aligned in their defences, the Defendants' positions did differ somewhat on certain aspects of the argument and evidence.

The claim in overview

These proceedings concern sums paid by the Claimants to the Defendants for the purchase of CON29DWs and CommercialDWs. The relevant period of the claim is 18 December 2013 to date, during which there have been thousands of such transactions.

The Claimants allege that all the information responsive to a CON29DW is “environmental information” ( EI) within the meaning of the Environmental Information Regulations 2004 ( EIR). Following the European Court of Justice (CJEU) decision in Fish Legal v Information Commissioner (Case C-279/12)[2014] QB 521, and applying the tests it laid down, the Upper Tribunal (Administrative Appeals Chamber) ( UT) determined that the Defendants were ‘public authorities’ within the meaning of the EIR ( Fish Legal v Information Commissioner[2015] UKUT 0052 (AAC)). As such, the Defendants were obliged to make EI available for free or for no more than a reasonable charge.

The Claimants claim in restitution, asserting that the charges levied by the Defendants were unlawful and/ or paid under a mistake of law and that the Defendants have been unjustly enriched to the extent of those charges, less such sum as the Court may determine the Defendants could lawfully charge had they made the information available in compliance with the EIR. The Defendants deny liability, including on the basis that the information responsive to a CON29DW was not EI, that the information was not ‘held’ by them at the time the relevant request was made or that they were otherwise entitled under the EIR to refuse its disclosure.

Background to the stage 1 trial

The Defendants' liability (or otherwise) in unjust enrichment formed no part of the issues to be decided at the stage 1 trial. Nor was there any consideration of quantum issues. Rather, the six overarching issues falling for my determination were set out in an agreed List of Issues ( LOI), all concerned with the interpretation and/ or application of the EIR ( EIR Issues).

The scope of the stage 1 trial had its origins at the first case management conference on 25 March 2021 ( CMC1). Given the scale of the proceedings, the parties were agreed that it was not feasible to resolve them completely within a single trial. The Court therefore directed this ‘stage 1’ trial, involving a number of lead Claimants, to determine the EIR Issues (then expressed in more general terms) and made directions for the identification of sub-issues and criteria for lead Claimants, it being anticipated that the determination of the EIR Issues for a small number of lead cases at stage 1 could be extrapolated to the remainder.

Having made good progress between themselves, the parties agreed an order at CMC2 on 22 September 2021, including directions for the more detailed LOI to replace the general issues identified at CMC1, now setting out the sub-issues, fact patterns and assumed or agreed facts in relation to the EIR Issues and providing for some to be tested by reference to sample transactions, as well as directions to facilitate the selection of lead Claimants.

A further set of directions was agreed ahead of CMC3 on 10 February 2022, including for the agreement of a list of sample transactions for some of the EIR Issues.

By the time of CMC4, the parties had agreed lists of sample transactions and the Defendants had proposed a revised LOI, removing some of their original arguments. The sequencing of service of factual evidence was ordered to take place in three rounds, with the evidence addressed to Issue 3.1 to be served sequentially, the Claimants going first.

The EIR issues

The final iteration of the EIR Issues reflects revisions agreed by the parties in light of amendments proposed by the Defendants in September 2023 to their respective defences. The final form of LOI, reflecting those amendments, was approved by me following the PTR on 3 October 2023...