Court of Appeal upholds High Court decision limiting private law actions in pollution disputes

The Court of Appeal has confirmed a judgment of the High Court that affected parties do not have a right to bring private law actions against water companies over unauthorised 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 decision that, even if sewage discharges are unauthorised, the law does not allow people directly impacted to bring private law claims against the companies involved.

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

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

MSCC's High Court claim raised the issue of whether it has any private law claim in trespass or nuisance against UU in respect of discharges from outfalls that are not authorised by statute (in effect, untreated foul water discharges that prejudicially affect the quality of the water in the canal).

At the High Court, UU accepted that if there had been any such discharges, it would have acted in breach of its statutory duty - but said that the only remedy available was regulatory enforcement under the relevant statutory provisions, not a private law action by the landowner affected. Fancourt J's decision favoured UU, leading MSCC to appeal the decision.

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

1. Fancourt J was wrong to conclude that unauthorised discharges necessarily involved a breach of s. 94 WIA 1991, and that the s. 18 machinery operated to the exclusion of private tortious remedies.
2. Fancourt J adopted an over-broad reading of Marcic. (3) On Fancourt J's interpretation there is little or no point to the foul water provisos.
3. Fancourt J was wrong to find that the unauthorised discharges were involuntary.
4. Fancourt J was wrong to find that a purely involuntary act is not an act of trespass.

However, Lady Justice Asplin dismissed the appeal as "[neither] the grounds of appeal advanced by MSCC nor such additional points as were made by the interveners" persuaded her that Fancourt J was wrong.

In a statement on the decision, the Good Law Project, which acted as an intervener in the case, said: "Unfortunately, the Court of Appeal has decided that even if sewage discharges are unauthorised – as they so often are – the law does not allow people directly impacted to bring private law claims against the companies concerned."

It added: "The only option for a remedy is through the environmental regulators. But, sadly, after years of inaction by the Environment Agency and the water regulator Ofwat, which have been chronically underfunded 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 will consider intervening again to "ensure the Court is provided with the crucial context as to the importance of these issues".

Earlier this month, a legal campaign group filed proceedings in the High Court against the water services regulator for England and Wales, Ofwat, over alleged failures to regulate sewage discharge into rivers, lakes and the sea.

The group behind the claim, Wild Justice, said it believes that Ofwat has not been addressing its legal obligation to ensure sewage works are fit for purpose. As a result, the group claimed that untreated sewage was discharged into watercourses over 350,000 times in each of the last two years.

Adam Carey