Corby wins leave to appeal against landmark environmental judgment

Corby Borough Council has been given leave to appeal in a high-profile environmental group litigation case – dubbed the UK’s ‘Erin Brockovich’ – although the dispute could yet be resolved through mediation.

Lord Justice Waller approved all 142 grounds submitted by the Council on 11 December. The case will now proceed to an appeal hearing, with mediation scheduled to take place this spring. The council resolved to adopt this twin-track approach at a meeting on 18 August 2009.

The claim relates to the regeneration of the town’s steel plant, which shut in 1980 after 60 years of steelmaking. The council subsequently bought the site from British Steel in parcels and proceeded to reclaim it.

Between 1985 and 1999, a group of children were born with deformities to the extremities of their upper or lower limbs, principally missing fingers and clubbed feet. The claimants argued that toxic particles from the waste removed from the site during the reclamation process had become airborne over the town and were subsequently inhaled by their mothers during the first trimester of pregnancy, when the babies’ limbs were forming.

Corby lost in the High Court’s Technology and Construction Division, with Mr Justice Akenhead ruling in July last year that:

• There had been a statistically significant cluster of birth defects between 1989 and 1999
• Toxicologically there were present on the site the contaminants that could have caused these defects
• There was an extended period between 1983 and August 1997 during which the council had been extensively negligent in its control and management of the sites
• From 1 April 1992, the council had also been in breach of statutory duty
• The negligence and breach of statutory duty led to the dispersal of contaminated mud and dust over public areas of the town
• As a result the contaminants could realistically have caused the types of birth defects the claimants complained about.

However, he added that it could not be demonstrated that after August 1997 the birth defects in children conceived thereafter could be caused by any breaches of duty or public nuisance occurring before that time – there had been no significant emissions of contaminants after that time.

The judge found the council liable in public nuisance, negligence and breach of statutory duty, although this ruling was subject to individual claimants establishing in later proceedings that their conditions were caused by the defaults he identified.

He also ruled that there had not been a “systemic breakdown” within the council, as alleged by the claimants, but that it had “bit off more than it could chew and did not really appreciate the enormity, ramifications and difficulty of what it was setting out to achieve in terms of removing and depositing very substantial quantities of contaminated material”.

The case has prompted concerns that the judgement sets very high standards of care, potentially affecting all local authorities to have reclaimed land over the last 20 years and sites of former steelworks in particular.