A setback for common law remedies

By clairefowler

In June this year, the High Court ruled that it is the role of the regulator and not the courts to address nuisance resulting from the discharge of untreated sewage during storms. The decision, in Manchester Ship Canal Company Limited (MSCC) v United Utilities [2021] EWHC 1571 (Ch), was the latest in a long running dispute between the parties regarding United Utilities’ right to discharge water and treated effluent into the Manchester Ship Canal, under the Water Industry Act 1991 (“the Act”).

MSCC had indicated its intention to bring trespass claims against United Utilities from late 2015 for their allegedly unlawful discharges into the canal. United Utilities sought a declaration from the court that such claims were inadmissible, with only the statutory remedies remaining.

Mr Justice Fancourt concluded that while a private law claim was not excluded by the statutory scheme under the Act, where the complaint (however pleaded – as trespass, a nuisance or breach of statutory duty etc) could only be remedied by the construction of more or better sewers, allowing an individual claim for an injunction or damages would subvert the integrity of the regulatory scheme.

It is worth noting that this decision may be the subject of an appeal especially given the judge’s concession that he had “not found resolution of this issue a straightforward matter”.