Court of Appeal upholds High Court ruling limiting private law claims in pollution disputes

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The Court of Appeal upheld a High Court judgment that affected parties have no right to bring private law actions against water companies for unauthorized discharges of sewage.


In Manchester Ship Canal Co Ltd v United Utilities Water Ltd [2022] EWCA Civ 852 (27 June), Lady Justice Asplin – with the agreement of Lord Justice Arnold and Lord Justice Nugee – upheld the High Court’s ruling that, although sewage discharges are not permitted, the law does not allow those directly affected to bring a private lawsuit. claims against the companies concerned.

The case concerned an appeal by Manchester Ship Canal Company Ltd (MSCC) against Fancourt J’s decision on issues raised in a long-running dispute between MSCC and United Utilities Water Ltd (UU) over discharges of UU in the Manchester Ship Canal.

UU is the sewerage company for North West England, while MSCC owns the Manchester Ship Canal.

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MSCC’s action in the High Court has raised the issue of whether there is a private law claim for trespass or nuisance against UU in respect of discharges from outfalls which are not permitted by law ( in fact, the discharges of untreated sewage which harm the quality of the water in the canal).

In the High Court, UU admitted that had there been such discharges it would have acted in breach of its legal duty – but said the only remedy available was enforcement under the relevant statutory provisions , and not a private law action by the relevant owner. Fancourt J’s decision favored UU, leading MSCC to appeal the decision.

In the Court of Appeal, the MSCC challenged the decision on the following grounds:

  1. Fancourt J. erred in concluding that the unauthorized discharges necessarily involved a violation of s. 94 WIA 1991, and that s. 18 operated to the exclusion of private tort remedies.
  2. Fancourt J has taken too broad a reading of Marcic. (3) On Fancourt J.’s interpretation, there is little or no reason for the fetid water reservations.
  3. Fancourt J was wrong to conclude that the unauthorized discharges were unintentional.
  4. Fancourt J. erred in concluding that a purely involuntary act is not an act of trespass.

However, Lady Justice Asplin dismissed the appeal as “[neither] neither the grounds of appeal advanced by MSCC nor the additional arguments advanced by the interveners” persuaded her that Fancourt J was wrong.

In a statement on the decision, the Good Law Project, which intervened as an intervener in the case, said: “Unfortunately, the Court of Appeal has decided that while the sewage discharges are not permitted – as they so often are – the law does not allow those directly affected to bring private law actions against the companies affected.”

He added: “The only option to address this is through environmental regulators. But, unfortunately, after years of inaction by the Environment Agency and water regulator Ofwat, who have been chronically under- funded by the government, it is already very difficult for people to hold water companies to account for this disgusting practice.”

The Good Law Project later added that, should the Manchester Ship Canal Company decide to appeal the case to the Supreme Court, it would consider intervening again to “ensure the Court receives crucial context as to the importance of these issues.

Earlier this month, a legal campaign group brought a High Court action against England and Wales water utility regulator Ofwat over alleged breaches of waste water regulations. wastewater in rivers, lakes and the sea.

The group behind the complaint, Wild Justice, said it believed Ofwat had failed in its legal duty to ensure the remediation works were fit for purpose. As a result, the group claimed that untreated sewage has been dumped into waterways more than 350,000 times in each of the past two years.

Adam Carey


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