Council loses appeal against £42k damages award over water running off highway

The claimaints brought the case initially against the council in Chester County Court, where Mr Recorder Shaw found against it.

Mr Justice Mansfield said Cheshire East’s grounds of appeal were “lengthy and diffuse” but involved alleged procedural unfairness, errors in findings of fact and in assessment of the duty of care, an error in finding that the council should prioritise the proactive jetting of gullies near to the claimants' road and an error in causation issues.

The council also appealed against assessment of loss of amenity damages and of diminution of value.

Both claimants live in a home adjacent to a village green whose geography tended to send water across the garden and driveway of their home during heavy rains. Successful remedial works eventually took place in 2024, before which some 20 floods occurred over 13 years.

The council argued in Chester County Court that it had taken reasonable steps to prevent flooding but had limited resources with some 104,000 gullies to maintain.

An additional dispute arose over Mr Recorder Shaw’s decision to make an unaccompanied site visit.

Mansfield J said: “It appears in this case all the judge could have done was familiarise himself with the layout of the area: The Green and the property. There is no suggestion he carried out any tests or lifted the drains.”

He added: “I see no difficulty in this case in the judge familiarising himself with the road where the flooding occurred. He only put himself in the same position as a judge who happened to know the particular area from his local knowledge.”

The judge said the council had made a number of procedural criticisms of Mr Recorder Shaw including that he called witnesses himself, elicited evidence from Mr Eaton and took an unduly confrontational approach to the council’s witnesses.

“I reject all of these criticisms,” Mansfield J said.”A judge is not a passive observer of a trial. He must conduct the trial fairly and be sensitive of the need to ensure that witnesses are able to give their best evidence.”

He added: “It is perfectly open to a judge to ask questions of a witness.”

Turning to the substance of the appeal, Mansfield J said Cheshire East’s central thrust was that Mr Recorder Shaw set too high a duty on it to take steps to prevent flooding of the property, in the light of competing demands on its resources.

Mansfield J said a key plank of the council’s appeal was that the county court failed to analyse the difference between highway water and surface water, with Cheshire East arguing it was not liable for the latter.

He said the former was rain on the highway, while the latter was that which comes onto the highway from, for example, other adjoining properties.

Mr Recorder Shaw concluded the distinction was irrelevant, and “I have been shown no authority to demonstrate that he was wrong about that”, Mansfield J said.

Cheshire East argued the county court sought to hold it to an impermissibly high standard of care, saying it must clear the drains concerned ahead of all others whenever rain was threatened.

Mansfield J said: “…whether or not a highway authority could be expected to check on areas at particular risk when bad weather is due is a matter of evaluation of the evidence, not a matter of principle”.

He cited a case where a council had a system where an employee broke off from normal duties to check a particular hotspot in bad weather.

“I do not see that there is any reason as a matter of law or principle why such a system could not be operated,” he said.

“It is a question of whether in all the circumstances, given competing demands, it is unreasonable for the authority to fail to do so: that is a factual assessment – part of the multi-factorial assessment that the court must carry out.”

Cheshire East had also appealed over damages but Mansfield J called the £25,000 awarded for blight “relatively modest” and could “see no basis for the argument that it was perverse to assess damages in that sum”.

The council also objected that the recorder erred in making an award to one of the claimants, given that she had not given evidence, and in awarding an amount greater than the sum claimed in the Schedule of Loss.

Mansfield J said: “Given that the flooding affected the home in which they both lived together it was a matter of common sense that they were likely to be affected in the same way, so there is nothing surprising, or in error, in the judge's decision that they should each receive the same amount.”

He said the loss of amenity assessment had been matter for the recorder and “there is nothing excessive about an award of £17,500 in the circumstances of this case”.

Mark Smulian