Sutradhar v Natural Environment Research Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD WALKER OF GESTINGTHORPE,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD MANCE |
| Judgment Date | 05 July 2006 |
| Neutral Citation | [2006] UKHL 33 |
| Date | 05 July 2006 |
| Court | House of Lords |
[2006] UKHL 33
Appellate Committee
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Mance
HOUSE OF LORDS
Appellants:
Lord Brennan QC
Andrew Spink QC
Richard Hermer
(Instructed by Leigh Day and Co)
Respondents:
Michael Beloff QC
Charles Pugh
Ben Cooper
(Instructed by Manches LLP)
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood. For the reasons they give, with which I agree, I would dismiss this appeal.
My Lords,
The question is whether the claimant, who lives in Bangladesh, has a reasonable prospect of success in an action against the Natural Environment Research Council ("NERC") for negligence in issuing a geological report which he says induced the health authorities in Bangladesh not to take steps which would have ensured that his drinking water was not contaminated by arsenic. In consequence he says that he has suffered injury from arsenical poisoning. The Court of Appeal, by a majority (Kennedy and Wall LJJ, Clarke LJ dissenting) and reversing the judge (Simon J) decided that the claimant had no reasonable prospect of satisfying a court that in all the circumstances the NERC owed him a duty of care. It struck out the claim. I agree. In my opinion the claim is hopeless.
Summary judgment
Under CPR r 24.2 the court has power to give summary judgment against a claimant if it considers that (a) he "has no real prospect of succeeding on the claim…and (b) there is no other compelling reason why the case or issue should be disposed of at a trial." This is a broader power than existed under the old rules, when a claim could be struck out only on the grounds that the pleading disclosed no cause of action (the old demurrer, on which no evidence was admissible) or that the claim was frivolous, vexatious and an abuse of the process of the court. Under CPR r. 24.2 evidence is admissible and witness statements have been submitted by both sides. The new power has been described by Lord Woolf MR (in Swain v Hillman [2001] 1 All ER 91, 92) as salutary:
"It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success…"
Lord Woolf went on to say:
"It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position…Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial."
These remarks were approved by this House in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1: see Lord Hope of Craighead at pp. 259-260; Lord Hutton at pp. 272-273. In addition, as Lord Millett said in the same case (at p. 294) the "most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone." It is not just to a defendant to subject him to a lengthy and expensive trial when there is no realistic prospect of success.
I therefore approach this appeal on the basis that the claimant's allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial. The question is whether, on these assumptions, he has a real prospect of success. For this purpose, I shall first set out the facts as alleged in the statement of claim together with some incontrovertible background material which is either contained in the evidence or common general knowledge. I shall then consider whether as a matter of law there is any prospect of the claimant being able to establish a cause of action.
The British Geological Survey
NERC is incorporated by Royal Charter pursuant to section 1(1)(b) and 1(3) of the Science and Technology Act 1965 for the objects of research, instruction, the dissemination of knowledge and the provision of advice relating to the earth sciences and ecology. Its members are appointed by the Secretary of State for Trade and Industry and it is funded by grants from that Department and fees for activities undertaken for other departments, foreign governments or the private sector.
The British Geological Survey (BGS) was founded in 1835 as a branch of the Ordnance Survey and is now a department of NERC. It has an annual budget of £37m; about half consists of grants from public funds and the rest from paid research. It employs about 800 permanent staff and, among other things, undertakes research in hydrogeology. It has a specialised acquifer properties laboratory at Wallingford.
The Bangladesh Second Deep Tubewell Project
The Overseas Development Agency (ODA) was in 1992 a functional wing of the Foreign and Commonwealth Office, charged with providing aid to poor countries. It subsequently became the Overseas Development Administration and in 1997 its functions were taken over by the Department for International Development (DFID). During the period 1983-1992 it was one of the donors funding a project known as the Bangladesh Second Deep Tubewell Project ("DTWII") to increase food production in Bangladesh by assisting the Bangladesh Agricultural Development Corporation ("BADC") to provide 4000 deep tubewells (artesian wells) for irrigation purposes in an area north of Dacca. These were wells of substantial capacity (50-60 litres per second) equipped with a vertical turbine or electrical submersible pump.
In 1984 the ODA commissioned the BGS to undertake hydrogeological work for the purpose of testing the efficiency of tubewell designs. For this purpose Mr Jeffrey Davies, a geologist specialising in hydrogeology, was employed by the BGS to test 16 well designs. He tested these wells in a relatively small area north-west of Dacca, forming part of the area covered by DTWII, which was chosen for its relatively homogeneous geological character. This project was concluded in 1988.
In 1990 Mr Davies proposed a programme to check on whether there had been deterioration in the performance of the DTWII tubewells. He proposed first to revisit the 16 test wells sunk by BGS and then, if he found deterioration, to undertake a more detailed study in the following year. Funding for both stages of this programme was approved by ODA.
The Geological Survey
Mr Davies made his initial field trip early in 1991 and found no signs of deterioration. He therefore declared a second visit to be unnecessary and proposed instead that the BGS should spend the £40,000 allocated by ODA on a study of the hydrochemistry of the main aquifer units of the whole area covered by the DTWII project. This involved taking water and sediment samples at various places and sending them to the laboratory at Wallingford for chemical analysis. The proposal claimed that, in addition to adding to the general stock of geological knowledge, his project would be useful in two ways. First, it would provide a better understanding of the way in which the DTWII irrigation wells worked. Secondly, following a suggestion from a colleague at the Institute of Acquaculture at Stirling University, he said that the chemical analysis could reveal the presence of trace elements such as aluminium and iron which might be toxic to the fish which (in a project in which the Stirling Institute was involved) rural Bangladeshis were being encouraged to farm. Indeed, such elements might be toxic to humans also. It appears that the Wallingford laboratory has a standard procedure which can test simultaneously for all the major and minor ions and the most common trace elements. As these include aluminium and iron, the information concerning the fish was obtainable at no extra cost.
Mr Davies did his field work in the first three months of 1992, obtaining groundwater samples from 150 sites in central and north-eastern Bangladesh. Most of the samples were taken from deep tube wells but more than a third came from hand pumped shallow wells which were commonly sunk to provide drinking water. After they had been analysed at Wallingford, he wrote up his report.
The Report
The Report was entitled:
"Short term BGS Pilot Project to Assess the Hydrochemical Character of the Main Aquifer Units of Central and North-eastern Bangladesh and Possible Toxicity of Groundwater to Fish and Humans."
It began with an Executive Summary. This described the project as a "reconnaissance study" which had the primary aim of producing a reliable body of data that could be used to describe the hydrochemistry of the main aquifer units of central and north-eastern Bangladesh. Such data was required to understand the hydrochemical nature of the main aquifers, the genesis of the alluvial aquifers and the modes of occurrence of "trace elements that may be toxic to biological systems". The "Study Inputs" were the obtaining of samples from 150 widespread sites and submitting them to Wallingford "for the determination of 31...
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