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Andrew Rigney KC is successful in test case defending a claim against a water undertaker under statute and in negligence

Judgment has been handed down in Southern Gas Networks Plc v Thames Water Utilities Limited [2016] EWHC 1669, a test case which has wide-ranging implications for statutory undertakers. One of Thames’s water mains burst, and, as a result, water bored a hole in one of Southern’s gas mains and water entered the gas network. The parties sought the Court’s determination as to whether compensation payments (known as Failure to Supply Gas payments (“FSG payments”)) made by Southern to customers whose gas supply had been interrupted as a result of such ingress of water were recoverable from Thames under section 82(1)(b) of the New Roads and Streetworks Act 1991 (“NRSWA”) as “expenses incurred in making good damage” or, alternatively, in negligence at common law. The Court held that such payments were not “expenses incurred in making good damage”. In addition, following the decision of the Court of Appeal in Yorkshire Electricity Board v Telewest [2006] EWCA Civ 1418 and adopting the approach of Lord Dyson JSC in Child Poverty Action Group v SSWP [2011] 2 AC 15, it held that section 82 of NRSWA itself or section 82 together with section 81 of NRSWA and sections 18 to 27, 37 and 209 of the Water Industry Act 1991, forms or form a complete statutory code which excludes the operation of the common law. Either way, therefore, FSG payments were not recoverable.

Andrew was instructed by Clyde & Co LLP.

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