ELF had a significant victory in July when the Supreme Court handed down judgment for The Manchester Ship Canal Company Ltd v United Utilities Water Ltd. ELF intervened in this case with assistance and support from a fantastic legal team at Hausfeld, the Good Law Project and barrister support from Stephen Hockman KC and Tom Cleaver of 6 Pump Court.

The case in question was an appeal which formed part of a 14 year long period of litigation about the discharges of foul water contaminated with untreated sewage into the Manchester Ship Canal. This is a problem ELF sees across the country in all of our waterbodies from rivers, chalk streams, to lakes and coastal shores and beyond. ELF has seen that, time and time again the legal protections in this area are inadequate.

In this case, the question arose of whether Manchester Ship Canal Company Ltd could bring a claim in private law nuisance or trespass when its canal is polluted by discharges of foul water from the Combined Sewage Outfalls maintained by the statutory sewerage undertaker, United Utilities Water Ltd. The Canal Company threatened to bring a claim in trespass and nuisance and, in response, United Utilities asked the court to make a declaration that the Water Industry Act 1991 barred any such claim. The High Court agreed to make the declaration requested, and the Court of Appeal upheld this decision.

However, when appealed to the Supreme Court, Lords Reed and Hodge, in a unanimous judgement from the bench of seven judges, granted the ship canal company’s appeal, holding the 1991 Act does not prevent the Canal Company from bringing a claim in nuisance or trespass, even when there has been no negligence of deliberate misconduct. The Court held the right of the Canal Company to peaceful enjoyment of its property is a fundamental right which cannot be overridden unless there is express language used by Parliament. As the Supreme Court stated “Unless the commission of the tort has been authorised by Parliament, or common law rights of action have been excluded, the Canal Company therefore has a cause of action. As we have explained, the 1991 Act does not authorise the commission of such a tort; and it does not exclude a common law right of action” (paragraph 136).”

This case has the potential to be a gamechanger for situations where there is foul water discharge into watercourses for those who hold proprietorial rights. ELF looks forward to exploring the implications of this case further. The full judgment can be found here.