Environment – Sewerage – Public sewer – Fees – Respondent claiming repayment of fees paid for sewerage services – High court allowing claim – Appellants appealing – Whether appellants discharging burden of showing surface water drained into public sewer – Whether appellants entitled to fees for surface water drainage services – Appeal allowed
The respondent brought a restitutionary claim for repayment of over £150,000 in fees that it had paid for sewerage services dating back to 2000. Between September 2000 and June 2016, about £120,000 was paid to the second appellant, and from June 2016 until September 2019, about £30,000 was paid to the first appellant.
The second appellant was the relevant “sewerage undertaker” with responsibility for the system of public sewers. However, in June 2016 it transferred its non-household business to the first appellant, which thereafter became its “sewerage licensee” and was entitled to charge for the provision of sewerage services to commercial entities.
The basis for the charging of such fees was that surface water from the respondent’s commercial premises on the Sankey Valley Industrial Estate in Newton-Le-Willows flowed into a sewer that was a “public sewer” as defined in the Water Industry Act 1991. The central issue between the parties was whether the sewer in question was a public sewer or not.
The High Court held, among other things, that the appellants had not discharged the burden of showing that the sewer into which the surface water from the premises drained was a public sewer; and they had not been entitled to charge fees for surface water drainage services, and the payment of such fees by the respondent had been made under a mistake, giving rise to a restitutionary remedy: [2022] EWHC 3321 (Ch). The appellants appealed.
Held: The appeal was allowed.
(1) The general rule in civil litigation was that they who asserted had to prove. So, where an allegation formed an essential part of a party’s case, the burden of proving such allegation to the civil standard of proof rested on that party at all times. If, when all the evidence had been adduced, the court did not find the allegation proven on the balance of probabilities, the party on whom the legal burden rested would lose their claim: see Emmanuel v Avison [2020] EWHC 1696 (Ch), referring to Phipson on Evidence (20th ed), at 6-06.
The judge’s statement that “the evidential burden lies on the person asserting it to be public to establish on the balance of probabilities that it is”, was wrong. It confused the legal burden of proof (to establish a fact on the balance of probabilities), with the evidential burden (which was not a burden of proof at all). The legal burden was always on the respondent to establish on the balance of probabilities that the sewer was not a public sewer; and that it had paid sewerage charges in the mistaken belief that the appellants had supplied it with surface water sewerage services.
(2) The critical issue was whether the appellants had not in fact provided the sewerage services for which they had been paid. That required proof that the sewer into which surface water from the respondent’s premises flowed was not a public sewer within section 219(1) of the 1991 Act. If the sewer to which the premises were connected was not vested in the second appellant in its capacity as sewerage undertaker, neither it nor the first appellant as licensee would be treated as having provided sewerage services within section 144(1)(b) of the 1991 Act.
Section 219(1) defined the meaning of “public sewer” as it appeared in the 1991 Act by reference to whether the sewer was vested in a sewerage undertaker in its capacity as such. Section 219(1) also indicated that the expression “private sewer” as it appeared in the 1991 Act “shall be construed accordingly”. That plainly indicated that the definition of a “public sewer” in section 219(1) was intended to have a conventionally limited interpretative function, rather than any broader role or wider legal consequences.
Section 219(1) was not intended to create any presumption as to the status of a sewer either way. The incidence of the legal burden of establishing the status of a sewer would depend, in the usual way, upon who was asserting that it had a particular status. In the ordinary course of business, a sewerage undertaker that intended to charge people and businesses for services supplied had to be ready, if required to do so, to prove that it was entitled to make such charges.
(3) In order to make good the constituent elements of its claim in restitution, the respondent had the legal burden of showing that it had made payments in the mistaken belief that the appellants had provided sewerage services to the premises. The respondent therefore had the legal burden of establishing, on the balance of probabilities, that the sewer into which the surface water from its premises drained was not a public sewer vested in the second appellant.
The respondent also bore the burden of adducing sufficient evidence for that matter to be left to the judge as the tribunal of fact. In that regard, the respondent pleaded the various statements made from time to time by the second appellant that the sewer was a private sewer. Those facts and matters were sufficient to discharge the evidential burden upon the respondent, in that they were credible evidence that, if not contradicted or explained, could have been accepted by the judge as establishing on the balance of probabilities that the sewer was not a public sewer.
(4) However, the question remained whether, in light of all the admissible evidence adduced by both sides, the respondent had established on the balance of probabilities that the sewer was not a public sewer. Because the judge approached the matter in the wrong way, he never actually answered the correct question: whether, in light of all the evidence, the respondent had established, on the balance of probabilities, that at the times when the charges were paid, the sewer in question was not a public sewer vested in the second appellant.
Since the legal burden of proof was not on the appellants, they did not have to prove any positive case about how the sewer came to be vested. Nor did their failure to make out their contention, that the sewer had vested as a consequence of being upgraded, mean that the respondent’s claim necessarily succeeded. Therefore, the appeal would be allowed on that ground. The matter would be remitted to the judge to remake his decision.
James McCreath (instructed by JMW Solicitors LLP) appeared for the appellants; Victor Steinmetz (instructed by DLA Piper UK LLP) appeared for the respondents.
Eileen O’Grady, barrister
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