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Court of Appeal rules on 160 year old dispute

02/03/18

The Court of Appeal has given judgment in Canal & River Trust v Thames Water Utilities Ltd [2018] EWCA Civ 342 (on appeal from the judgment of Asplin J, [2016] EWHC 1547 (Ch)). The parties were involved in litigation in the early 1850s concerning the amount payable by Thames Water in return for taking water from the River Lee.

Approximately a sixth of the water supplied by Thames Water to domestic and commercial customers in London comes from the River Lee.  The Canal & River Trust is charged with the management of a number of waterways in England & Wales, including the River Lee. 

Parliament has attempted to settle the amount to be paid by Thames Water to the Canal & River Trust, including in the River Lee Water Act 1855 (the “1855 Act”) and through a water abstraction licensing scheme introduced in the 1960’s.  The sum payable was most recently set with effect for 1995-2000, and the parties have been in dispute since 2000 regarding the amount that should be paid after that date.

The Canal & River Trust brought proceedings to ask the Court to give guidance as to the amount payable and the bases of liability.  In a judgment handed down on 2 March 2018, Floyd LJ (with whom the other members of the Court of Appeal agreed), held that:

  1. Under the 1855 Act, the rights that the Canal & River Trust’s predecessors once had to the water in the River Lee were given up once and for all and in perpetuity, and transferred to Thames Water’s predecessors.
  2. The purposes of the payments that Thames Water is obliged to make under the 1855 Act are to pay for the maintenance and repair of the river and for the once and for all transfer of rights under the 1855 Act. 
  3. The value of the water abstracted is a material consideration in the amount of the payments under the 1855 Act.  This is, however, just one of a number of material considerations that the Secretary of State is entitled to take into account when setting a just and reasonable payment. 
  4. The payments under the 1855 Act relate to all of the water in the River Lee that was transferred to Thames Water’s predecessors under the 1855 Act.

The judgment is here.

Sarah Abram represented Thames Water Utilities Ltd both in the Court of Appeal and earlier in the High Court trial, instructed by Berwin Leighton Paisner LLP.