Could the Manchester Ship Canal Company (MSCC) bring a private law claim in nuisance and / or trespass against United Utilities Ltd (UU) in respect of unauthorised discharges of untreated foul water by UU into the canal?
In June 2022, the Court of Appeal (Asplin, Arnold, Nugee LJJ) said not - The Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2022] EWCA Civ 852 (27 June 2022) (bailii.org)
The Supreme Court has reversed that - The Manchester Ship Canal Company Ltd (Appellant) v United Utilities Water Ltd (Respondent) No 2 - The Supreme Court
See the Judgment (PDF) and the Press summary (PDF)
It was argued for United Utilities that such private law claims were excluded because of the statutory scheme for
regulating sewerage established by the Water Industry Act 1991 (legislation.gov.uk)
As the summary notes - The implication of the Court of Appeal's judgment was that "no
owner of a canal (or other watercourse or body of water) can bring a claim based on nuisance
or trespass against a sewerage undertaker in respect of polluting discharges into the water,
unless the sewerage undertaker is guilty of negligence or deliberate wrongdoing. A claim of
this kind would be prevented even if the polluting discharges were frequent and had significant
and damaging effects on the owner’s commercial or other interests, or on its ability to enjoy its
property."
The Supreme Coutr held that the 1991
Act does not prevent the Canal Company from bringing a claim in nuisance or trespass when
the canal is polluted by discharges of foul water from United Utilities’ outfalls, even if there
has been no negligence or deliberate misconduct.
Discharge of sewage into watercourses is a major concern and