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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Marcic v. Thames Water Utilities Ltd [2001] EWHC Technology 394 (10th July, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2001/394.html
Cite as: (2001) 3 TCLR 29, [2001] 4 All ER 326, [2001] HRLR 53, [2002] QB 1003, [2001] BLR 366, 77 Con LR 42, [2001] EWHC 394 (TCC), [2001] 3 EGLR 111, [2001] EWHC Technology 394, [2002] 2 WLR 1000
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Marcic v. Thames Water Utilities Ltd [2001] EWHC Technology 394 (10th July, 2001)
Case No: 1998 TCC No. 224
IN THE HIGH COURT
OF JUSTICE
QUEENS BENCH
DIVISION
TECHNOLOGY
AND CONSTRUCTION COURT
Royal
Courts of Justice
Strand, London,
WC2A 2LL
Date: 10th July 2001
B e f o r e :
HIS HONOUR JUDGE RICHARD HAVERY Q.C.
|
Peter Marcic |
Claimant |
|
|
- and - |
||
|
Thames Water Utilities Limited |
Defendant |
Number 2
Mr.
Peter Harrison (instructed by South & Co. for the Claimant)
Mr. Michael
Daiches (instructed by Simon Byrne, in-house solicitor for the Defendant)
JUDGMENT
1. In the light of my judgment on liability dated 14th May 2001, I ordered a further preliminary issue to be heard, namely the proper measure of damages. At the hearing of that issue, Mr. Daiches at the outset applied to me to reconsider my judgment on liability. It was open to me to change my decision, since no order of the court had been drawn up. Since the judgment on liability involved new law, I acceded to that application. This judgment relates principally to the measure of damages, but I shall start by considering the submissions of Mr. Daiches that I should change my judgment on liability.
2. The starting-point for Mr. Daiches's submissions was that a failure to act, such as to give rise to liability under section 6(1) of the Human Rights Act, must involve the concept that the defendant could reasonably have acted so as to prevent or put an end to the infringement of the claimant's human rights (paragraphs 60 and 107 of my judgment on liability). Thus in substance the court had held that the duty on a public authority under the Human Rights Act was a duty to do what was reasonably practicable to abate the nuisance which gave rise to the infringement. Mr. Daiches submitted that it was not reasonably practicable for the defendant to carry out the necessary works.
3. Mr. Daiches submitted that my judgment on liability was erroneous. He based his argument on paragraph 104 of the judgment, in which I said:
Mr. Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In my judgment, there can be no question of a mandatory injunction. Any scheme would require the purchase of land, and the preferred scheme would require the co-operation of the Environment Agency.
Mr. Daiches submitted that paragraph 104 showed that I had decided that I had no power to grant an injunction. It followed that I had found that it was not reasonably practicable for the defendants to carry out the necessary works. Both those propositions are wrong. My decision to refuse a mandatory injunction was made in the exercise of my discretion. My reasons were expressed briefly since it seemed obvious that in the exercise of my discretion I should refuse a mandatory injunction. And I did consider it reasonably practicable for the works to be carried out: see paragraphs 24 and 86 of the judgment. After all, the works are no different in principle from the kind of works that the defendant is regularly carrying out.
4. Mr. Daiches submitted that even if he were wrong in his submission that I had found that it was not reasonably practicable to carry out the works, nevertheless it was not reasonably practicable to carry out the works. He submitted that I was wrong to "hold" the contrary. It was, he said, a question of mixed fact and law, since he was tying his submission to an argument that the whole line of cases at common law on nuisance in relation to sewage were explicable on the basis that an injunction would be granted where it was reasonably practicable to carry out the work (Pride of Derby v. British Celanese [1953] 1 Ch. 149, Baron v. Portslade Urban District Council [1900] 2 QB 588, Hole v. Chard Union [1894] 1 Ch 293), but not otherwise (Glossop v. Heston and Isleworth Local Board [1879] 12 Ch. D. 102, Robinson v. Workington Corporation [1897] 1 QB 619, Smeaton v. Ilford Corporation [1954] 1 Ch. 450). The old distinctions between feasance and non-feasance and between discharge of effluent and escape of effluent were not conclusive, but were generally related to reasonable practicability. Doing what was reasonably practicable to abate a nuisance involved the concept that the public authority had an immediate ability to abate the nuisance, rather than an ultimate ability. Another way of putting it was that the public authority must have immediate control, rather than ultimate control, over the events which were necessary to abate the nuisance. Mr. Daiches submitted that the dichotomy between immediate control and ultimate control was broadly coincidental with that between ownership of the land on which the works are required and the absence of such ownership, though there could be exceptions not relevant to the instant case. Since the defendant did not own the relevant land, its control was ultimate, not immediate. It seemed remarkable that in none of the many authorities in this area of the law was there any express reference to the dichotomy between immediate control and ultimate control. In support of his submission, Mr. Daiches relied on the observations of Waller L.J. in Bybrook Barn Centre Ltd. v. Kent County Council Court of Appeal transcript 1st December 2000, paragraph 24:
.....it will be a relevant consideration as to whether a defendant should be liable for "continuing" a nuisance created by forces for which that defendant is not responsible, whether it is reasonably practicable for that person to prevent the nuisance continuing.
Thus the immunity at common law which I had found to exist was in truth based on the fact that it was not reasonably practicable to carry out the works. And since it was not reasonably practicable to carry out the works, there was no "act" falling within section 6(1) of the Human Rights Act.
5. I reject those submissions of Mr. Daiches. He seeks to work back from my holding that the defendant has immunity at common law, through a theory which, as a justification of old decisions, is absent from their reasoning and is based on a decision of the Court of Appeal (Bybrook Barn) in which the sewage cases are expressly distinguished (see paragraph 46 of the transcript), to a conclusion which in my judgment is clearly one of fact and is contrary to my finding.
6. Notwithstanding those submissions, Mr. Daiches said that the defendant would be content to submit to an injunction to do specific works. But it was for the claimant to provide the necessary specification of the works, since it was for the claimant to tell the court what order he wanted. No such specification is before the court.
7. Of my own motion, I shall amend paragraph 104 of my judgment on liability in order to clarify the position. Otherwise, that judgment stands. Paragraph 104 will read
Mr. Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In the exercise of my discretion, I refuse that injunction on the grounds that (1) the injunction would have to specify the required works precisely; (2) the specification would be a matter of engineering expertise that is not before the court; and (3) performance of the injunction would require the co-operation of third parties, albeit that the defendant has powers of compulsory purchase of land.
8. Mr. Harrison submitted that Mr. Marcic was entitled under the provisions of section 50 of the Supreme Court Act 1981 to damages for future infringements of his rights in substitution for an injunction. Mr. Harrison was content not to argue that I should alter my earlier judgment by ordering a mandatory injunction. Mr. Marcic would prefer damages. He had had the problem of flooding for long enough. I dare say that Mr. Marcic would like to have an award of damages in order to buy another house and move away from the flooding. However that may be, Mr. Marcic's own preference is for an award of damages. Mr. Harrison submitted that the damages should include the difference between the value of the property as it would be if and when works necessary to prevent the flooding were completed, and its actual value. The damages would thus represent not a diminution in value, but a failure to achieve an increase in value. Mr. Daiches rightly made no submission that that was not a proper measure of damages in principle. For convenience, I shall nevertheless call it a diminution in value.
9. Mr. Daiches submitted on several grounds that this was not an appropriate case for damages in lieu of an injunction. First, he submitted that the measure of damages would produce a result that fell foul of the rules in Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch 287. He relied on passages in the judgments in the Court of Appeal in Jaggard v. Sawyer [1995] 1 WLR 269. At p. 277 Sir Thomas Bingham M.R. said that Shelfer's case was chiefly notable for the guidance given by A.L. Smith L.J. on the circumstances in which damages may properly be awarded in lieu of an injunction. That guidance included the following:
..... a person by committing a wrongful act.....is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction..... In my opinion, it may be stated as a good working rule that—(1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction:-- then damages in substitution for an injunction may be given.
Mr. Daiches submitted that if the damages were to reflect compensation to Mr. Marcic for all flooding which was ever likely to occur to the property in perpetuity, the injury to Mr. Marcic's legal rights could not be described as "small". Nor would it be capable of being estimated in money. Nor would the injury be one which could be adequately compensated "by a small money payment".
10. I reject Mr. Daiches's submission that the damages would not be capable of being estimated in money. The "difference in value" measure contended for by Mr. Harrison would reflect the view of the market on the prospects of flooding. A valuation would indeed be hypothetical, but not incapable of being carried out. I accept, however, that the injury would not be small, nor could it be adequately compensated by a small money payment. It does not fall within the rules in Shelfer's case. But in my judgment the rules in Shelfer's case do not apply here. Those rules apply where it is the defendant who is seeking to avoid being enjoined. That is apparent from what A.L. Smith L.J. himself said. In the passage cited above he referred to the defendant's asking the court to sanction his committing a wrongful act. And later on he said this:
There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct.....has disentitled himself from asking that damages may be assessed in substitution for an injunction.
And in Jaggard v. Sawyer, ib., p.287, Millett L.J. said that A.L. Smith L.J's. "working rule" applied to the exercise of discretion to withhold injunctive relief when the plaintiff claimed an injunction and the defendant asked the court to award damages instead. A.L. Smith L.J's. check-list was only a working rule and did not purport to be an exhaustive statement of the circumstances in which damages might be awarded instead of an injunction. Here, the defendant is not asking the court to award damages instead of an injunction. It is the claimant that is doing that. Mr. Daiches told me that the defendant would prefer an injunction to an award of damages against it. In my judgment, the wording of section 50 of the Supreme Court Act 1981 does not trammel the power of the court to award damages in lieu of an injunction.
11. Mr. Daiches next submitted that I could not award damages in lieu of an injunction, since an injunction did not lie. My decision to refuse an injunction on the basis that the court would not supervise the works was a holding that I had no jurisdiction to grant an injunction. I reject that submission. My decision was based on an exercise of discretion. I am satisfied that I have jurisdiction to award damages in lieu of an injunction. As Millett L.J. said in Jaggard v. Sawyer, ib. p.285:
The question is whether, at the date of the writ, the court could have granted an injunction, not whether it would have done.
Mr. Daiches submitted that in the above passage "could" meant "could in the exercise of the normal discretion", and that "it would have done" meant "having decided it could, it would do so on Shelfer principles". I reject that submission. It defies analysis, but I shall do my best. The question to which Millett L.J. was referring was the question whether, as at the date of the writ, the court had jurisdiction to grant an injunction. If so, it had to decide, by reference to the circumstances existing at the date of the hearing, whether to grant an injunction or award damages instead. The interpretation for which Mr. Daiches contended implies that Millett L.J. was saying something very odd. It is this: that in deciding, by reference to circumstances existing at the date of the hearing, whether or not to grant an injunction, the court does not decide whether it has jurisdiction to do so by reference to whether at the date of the writ it would have exercised that jurisdiction. That statement is no doubt true, but it is devoid of useful content and is manifestly not the true interpretation. Moreover, Mr. Daiches's interpretation of the word "could" is problematical. At most it can mean "might in the exercise of the normal discretion", otherwise the reference to discretion is irrelevant. Yet in the next sentence of his judgment, Millett L.J. approved a remark of Russell L.J. that the question was "whether..... the judge could have (however unwisely.....) made a mandatory order". Mr. Daiches's submission implies that in considering whether he has jurisdiction to award damages in lieu of an injunction, the question the judge has to decide is whether another judge, or perhaps himself, might, however unwisely, have exercised his discretion in a particular way at the date of the writ. If "might" should read "would", the implication is even more absurd.
12. Mr. Daiches submitted that it would be wholly oppressive and unjust to the defendant not to grant an injunction, since in the event of an award of damages to the claimant, the defendant would be under a continuing liability to pay damages to every successive occupier of the claimant's property until the crack of doom. Such damages would be in respect of the same loss and damage as that suffered by the claimant. I reject that submission. So far as successors in title are concerned, the matter would be res judicata: see per Millett L.J. ib., p.286, B. And as regards all occupiers, if a person chooses to go into occupation of a property known to be subject to flooding, I do not think that failure to alleviate the flooding could be regarded as an infringement of his human rights. Moreover, as Mr. Harrison submitted, section 8(3) of the Human Rights Act 1998 covers the situation. That sub-section provides:
No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
13. Mr. Daiches submitted that damages for future wrongs ought not to be awarded. His first ground was as follows. Even if the defendant had embarked upon the processes necessary to lead to the construction of the necessary drainage works immediately upon the coming into force of the Human Rights Act on 2nd October 2000, those works would not yet be completed. Mr. Marcic's property would still be liable to flooding. No actionable damage could accrue until those works could reasonably have been completed. It was premature to award damages now. Mr. Marcic's human rights had been vindicated by the court, and he was entitled to his costs. That entitlement was just satisfaction at this stage. If he suffered damage in the future, he should bring further proceedings then. It was not certain that infringement of Mr. Marcic's human rights would continue. The defendant might change its system of priorities so as to avoid such infringement. Or further proceedings might give the defendant an opportunity to adduce further evidence in support of its existing system. The present claim involved new law, and it was only fair to give the defendant an opportunity to defend its system in the light of the existing judgment.
14. There is force in that last point, but it is outweighed in my judgment by the heavy burden that would be imposed on Mr. Marcic by his having to bring proceedings all over again. As to the argument generally, I have made a finding not only that the defendant intends not to carry out the works necessary to remedy the nuisance, but also that it intends to continue to operate its existing system of priorities (see paragraph 106 of my judgment on liability). An argument of counsel that the defendant might change its mind does not affect that finding. I have held that the claimant's rights have been infringed, and that the defendant intends to continue the state of affairs that leads to that holding. If that intention is fulfilled, Mr. Marcic's human rights will continue to be infringed. Given that I have exercised my discretion against granting an injunction, justice requires that Mr. Marcic should have an award of damages now. Such an award is necessary to afford him just satisfaction.
15. Mr. Daiches's second argument in support of the proposition that damages for future wrongs ought not to be awarded was that such an award would be contrary to the Strasbourg jurisprudence. So far as he was aware, there was no case in the Strasbourg jurisprudence where an applicant had been awarded damages in respect of future wrongs. In S. v. France (1990) 65 D. & R. 250 the complaint had been declared inadmissible on the basis inter alia that the applicant had been reasonably compensated by the domestic courts in respect of past wrongs. Mr. Harrison submitted that in S. v. France compensation in respect of future infringement was recognized by the European Commission of Human Rights. The Conseil d'Etat had awarded the claimant compensation for diminution in the value of her property arising out of nuisance by noise. That must have been compensation for future noise, as I accept. The Commission, in reaching its conclusion that the interference complained of did not go beyond what was necessary in a democratic society, bore that compensation in mind.
16. Section 8(4) of the Human Rights Act 1998 provides that in determining the amount of an award, the court must take into account the principles applied by the European Court of Human rights in relation to the award of compensation under Article 41 of the Convention. Article 41 provides that if the internal law of the High Contracting Party concerned allows only partial reparation to be made, that court shall, if necessary, afford just satisfaction to the injured party. I conclude that an award of damages for future wrongs is not contrary to the Strasbourg jurisprudence.
17. Mr. Daiches further submitted that I should follow the common law in not awarding damages for future wrongs. In my judgment, I should not do so. The common law would not afford the claimant just satisfaction. He would have to bring onerous proceedings from time to time to enforce his rights. Nor would he be able to recover any diminution in the value of his property caused by the prospect of future wrongs.
18. My conclusions as to the measure of damages are these. 1. If the defendant had on 2nd October 2000 put in hand the processes necessary to bring the nuisance to an end, and diligently pursued them, it would have avoided infringing section 6(1) of the Human Rights Act 1998. It would have completed those processes on some date that I shall call the completion date. On the completion date, Mr. Marcic's property would have had some value X. That value would doubtless reflect any unrepaired damage caused by flooding occurring before the completion date. Mr. Marcic would in those circumstances have no cause of action against the defendant. 2. In fact, on the completion date Mr. Marcic's property will have some value Y. That value will probably be less than X, since, unlike X, it will reflect the prospect of future flooding. 3. The measure of damage must reflect the difference between the hypothetical situation of Mr. Marcic in the absence of infringement of his rights, and his actual situation given those infringements. 4. Thus, as of the completion date, Mr. Marcic will have suffered damage by reason of diminution in the value of his property in the sum of X minus Y. 5. If the completion date is in the past when the damages are awarded, the damages should reflect additionally an element of interest. By the same token, if the completion date is in the future when the damages are awarded, an appropriate discount should be made. 6. The only other head of damage claimed is damage for inconvenience, distress and vexation arising out of the flooding. That again can be claimed only in respect of the future from the completion date, and will not include any element arising from damage to the property caused by events occurring before then. But in my judgment it will be reflected in the value of the house, and accordingly no additional sum will be awarded in respect of it.
19. If necessary I shall decide an appropriate completion date after hearing evidence on the point.
20. In arriving at the above conclusions, I have borne in mind the voluminous Report of the Law Commission and the Scottish Law Commission entitled Damages under the Human Rights Act, put before me by Mr. Daiches.
© 2001 Crown Copyright