Intervention in major environmental law proceedings granted
A consortium of interveners including the Environmental Law Foundation and Good Law Project Limited - represented by Hausfeld - has been granted permission to intervene in major environmental law proceedings in the Court of Appeal between a water company operating in the North West of England (United Utilities) and the operators of the Manchester Shipping Canal (MSCCL).
The Water Industry Act 1991 (the WIA) and Private Legal Rights to Action
In March 2022, the Court of Appeal will hear a long running dispute between United Utilities (UU) and Manchester Shipping Canal Limited (MSC). Central to the dispute is the question of whether, and under what circumstances water and sewage undertakers, such as UU, can discharge sewage into waterways - and, when they do so, whether those impacted have any private right of action against the respondent water company.
To date, UU have argued successfully:
- that the WIA effectively gives them a statutory right, in principle, to discharge untreated sewage into waterways in circumstances of high rainfall or storms which render UU’s infrastructure unable to cope; and
- that the Court should make a declaration precluding the scope for all private legal actions against water companies in circumstances of so called “sewage dumping” incidents.
At first instance, the High Court found in UU’s favour. However, MSCCL were given permission to appeal with the Court acknowledging the complexity and importance of this issue.
Recent evidence has revealed the frequency and scale of sewage discharges across the country resulting in only 14% of the UK’s rivers being classified as in good health. In addition, overstretched and under-resourced regulators like the Environment Agency have been unable to take effective action to combat the problem.
In a significant development, the Court of Appeal will consider our clients’ detailed written submissions when analysing how the law should be interpreted and consequently, in deciding what remedies are available when water companies discharge sewage in breach of their permits. In granting permission, the Court noted that “it is in the public interest that the Court should receive expert legal submissions which may assist it in arriving at the correct conclusion on issues of statutory construction”.
Against this backdrop, the key purpose of the intervention is to highlight the wider context to the dispute and to demonstrate that the implications of the appeal are far from confined to the health of the Manchester Canal or a commercial dispute between UU and MSCC. Rather, this issue concerns the extent to which all those affected by so called “sewage dumping” across the UK can take action against the water companies responsible. Those affected include wild swimmers, fishing clubs, canoeists, and anyone else who enjoys the diversity of flora and fauna that are being degraded and destroyed by persistent levels of sewage dumping across the UK.
Interventions of this nature in private law disputes are not commonplace and the Court’s order to permit this intervention, highlights the scale of the sewage dumping problem in the UK and the urgent need to ensure that rights to legal action are preserved for all those affected.
The consortium consists of Good Law Project Limited, Environmental Law Foundation, London Waterkeeper, Stonyhurst College, and Kent Environment and Community Network. The full case reference is CA-2021-000674 AND 000675 (A) United Utilities Water Ltd v The Manchester Ship Canal Company Ltd. The Hausfeld team consists of Sarah Moore, Hana Tawfik and Sahil Kher.