Veolia Water Central Ltd v London Fire & Emergency Planning Authority [2010] EWHC 208 (QB)

[2010] EWHC 208 (QB)Case No HQ08X00231
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/02/2010
Before
THE HON MR JUSTICE EDWARDS-STUART
Between
VEOLIA WATER CENTRAL LIMITED (formerly THREE VALLEYS WATER plc)ClaimantLONDON FIRE & EMERGENCY PLANNING AUTHORITYDefendant
Javan Herberg (instructed by Reynolds Porter Chamberlain LLP) for ClaimantMichael Curtis QC and Miss Deok-Joo Rhee (instructed by Keith Minear, Head of Legal & Democratic Services, London Fire & Emergency Planning Authority) for DefendantHearing Hearing dates: 7 th, 8 th, 9 th, 12 th, 28 th, 29 th, 30 th October, 7 th DecemberApproved Supplementary
Judgment
[1]Since I handed down the judgment in this case on 7 December 2009 an issue has arisen about the precise form of the declaratory relief to which the Claimant, Three Valleys, is entitled.[2]In paragraphs 101 and 102 of the judgment I said this:101. Fifth, if the hydrant has a minor leak through the spindle that cannot be remedied by tightening the valve (or by adjustment within the slack angle), or a minor leak through the main valve that is being discharged through the frost outlet, and the extent of the leak is such that it does not cause the pit to fill up with water - in other words, the extent of the leak is such that the water can be removed from the pit either by seepage or by evaporation, or a combination of both - then I consider that such a state of affairs does not mean that the hydrant is not in good working order. Whilst the position should be noted and reported to London Fire, in my judgment immediate repairs would not be required by section 57(3).102. However, this last conclusion requires a qualification. It is this. Three Valleys would only be justified in taking no action in respect of such a minor leak if it was understood that, following the receipt of a report of a minor leak, London Fire would take reasonably prompt steps to inspect the hydrant and satisfy itself that it was not likely to become inoperable before it was next due for inspection. It would only be in the knowledge that such a system was in place that Three Valleys would be able to discharge its duty under section 57.[3]Relying on these two paragraphs Three Valleys sought a declaration to the effect that:
". . . where the Claimant gave to the Defendant notice of an intention to repair a fire hydrant that had a minor leak, and the Claimant reasonably believed that the Defendant would not take, and the Defendant in fact failed to take, reasonably prompt steps (a) to inspect the hydrant, (b) to satisfy itself that the hydrant was not likely to become inoperable before it was next due for inspection; and/or (c) to so inform the Claimant, then the Claimant pursuant to its duty under s 57(3) of the Water Industry Act 1991 to keep the hydrant in good working order was entitled to effect the repair or replacement of the hydrant, notwithstanding that the defect was not otherwise such as would justify repair or replacement pursuant to s 57(3)."
[4]London Fire opposed the suggested declaration. Three Valleys then responded by suggesting the addition of the following words, in brackets, after "minor leak" in the second line of the declaration: "being a leak which cannot be remedied by tightening the valve or by adjustment within the slack angle".[5]The point with which London Fire really takes issue is the implication of the words "where the Claimant gave to the Defendant notice of an intention to repair a fire hydrant that had a minor leak". As London Fire points out, all that Three Valleys would have to do to satisfy this would be to show(a) that it had given notice of its intention to repair a particular hydrant and(b) that the hydrant in question had a minor leak of the type described in paragraph 101 of the judgment. In other words, the notice given by Three Valleys would not have to indicate the nature or extent of the leak, whether major or minor, or indicate the nature of any other problem that required repair.[6]The issue arises because the qualification that I added in paragraph 102 of the judgment was not the subject of any argument during the trial or written submissions following it (apart from those that I have received following the handing down of the principal judgment). It was for this reason that I dealt with the matter in fairly general terms and declined to apply this qualification to any of the sample claims.[7]In my view a declaration in the terms proposed by Three Valleys would not fairly give effect to the intention behind paragraph 102 of the judgment. This is because in the absence of any explanation of the nature of the leak London Fire would have very limited means of telling from the terms of the request for an order precisely what was wrong with the hydrant that required repair. For example, to be told broadly that a hydrant requires a repack tells the recipient very little about the nature of the underlying state of the hydrant or of any leak. Of course, it indicates that there is a spindle leak, but by itself it provides no evidence of the severity of the leak.[8]In paragraph 102 of the judgment I deliberately used the words "following the receipt of a report of a minor leak": by this expression I did not mean the receipt of a report of a leak that happened to be a minor, but receipt of a report that there was a minor leak at a particular hydrant.[9]Accordingly, the declaration to which in my judgment Three Valleys is entitled will be in the following form: ". . . where the Claimant gives or gave to the Defendant notice that a fire hydrant has or had on last inspection prior to the giving of the noticea minor leak(being a leak which cannot or could not be remedied by tightening the valve or by adjustment within the slack angle) and of an intention to repair that hydrant, and the Claimant reasonablybelieves or believed that the Defendant will not or would not take, and the Defendant in fact fails or failed to take . . . . . . then the Claimant pursuant to its duty under s 57(3) of the Water Industry Act 1991 to keep the hydrant in good working order will be or was entitled to effect such repair or replacement of the hydrant, as is orwas reasonably necessary to remedy the leak, notwithstanding that the defect was not otherwise such as would justify repair or replacement pursuant to s 57(3).”[10]The parties may wish to double check this wording for consistency (or unintended consequences) but, subject only to any such amendments that may be required as a result, this is the form of declaration that I propose to make.[11]Whether or not these conditions have been met in relation to any of the claims in suit will be a matter of evidence.[12]I should add that, leaving aside the terms of my judgment, I would not have acceded to the form of declaration proposed by Three Valleys because to have done so would in effect permit Three Valleys to recover the costs of complying with its duty under section 37 of the Water Industry Act 1991 (or the requirements of Ofwat) - something to which it is not entitled. This would not be fair. Unfortunately, as I have already recorded in the judgment, both parties adopted positions that were tainted with intransigence and I do not consider that this is a case where it can be said that one party has behaved reasonably and the other has behaved unreasonably. By this I do not mean to be critical of either party: as one might expect in such a situation, both parties took commercial and practical positions from which they were not prepared to move.[13]For the avoidance of any doubt, this declaration is without prejudice to Three Valleys’ entitlement to recover the costs of repairs in cases where under the terms of my judgment (in particular, paragraphs 97, 98 and 99) I have held that they are entitled to do so. The entitlement here is not dependent on the precise form of any notice. In relation to paragraph 100 of the judgment, each case will depend on its facts; although I am not aware that Three Valleys has in fact made any claims for cleaning out pits in circumstances where they have not also carried out other repairs.[14]So far as I am aware, this will dispose of all the matters outstanding save for questions of costs. If costs cannot be agreed, then I will hear the parties. In that event, I direct that each party should exchange written submissions (with copies to the court) by no later than 4 pm on the day before the hearing.