Introduction

The case of Brendon International Ltd v Water Plus Ltd & Anor ([2024] EWCA Civ 220) was heard by the England and Wales Court of Appeal (Civil Division) on March 8, 2024. This case centered around a restitutionary claim filed by Brendon International Ltd (“Brendon”) for the repayment of over £150,000 in sewerage service fees paid between 2000 and 2019 to United Utilities and Water Plus Ltd (“the Appellants”). The core issues revolved around whether the sewerage services provided to Brendon were constituted by a public sewer, thereby justifying the charges, and whether the Appellants correctly bore the burden of proof in establishing the public nature of the sewer. Additionally, the case delved into the admissibility of expert evidence and the correct application of the Limitation Act 1980 regarding claims based on mistake.

Summary of the Judgment

The High Court initially ruled in favor of Brendon, determining that United Utilities and Water Plus failed to prove that the sewer serving Brendon's premises was a public sewer. Consequently, Brendon was entitled to a restitutionary remedy for payments made under a mistaken belief. The Appellants appealed this decision on three primary grounds: the incorrect allocation of the burden of proof, the improper exclusion of expert evidence, and the misapplication of limitation laws. The Court of Appeal found merit in these appeals, particularly critiquing the trial judge's handling of the burden of proof and the exclusion of expert testimony. Consequently, the Court of Appeal allowed the appeal, set aside the original judgment, and remitted the case back to the High Court for reconsideration in light of the appellate findings.

Analysis

Precedents Cited

The judgment referenced several key precedents to inform its decision:

• Marine Trade SA v Pioneer Freight Futures [2010] 1 Lloyd's Rep 631 and Scottish Equitable v Derby [2001] 3 Al ER 818: These cases were cited regarding the prohibition of claims based on mistake when doubt exists.
• Paragon Finance plc v DB Thakerar [1999] 1 All ER 400 and Davies v Sharples [2006] WTLR 839: Referenced in the context of the Limitation Act 1980, specifically related to the discovery of mistakes.
• Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited (No.6) [2008] EWHC 2220 (TCC): Discussed the admissibility of expert opinion evidence by factual witnesses with technical expertise.
• R v Robb (1991) 93 Cr. App R 161, R v Silverlock [1894] 2 QB 766, and Lusty v Finsbury Securities Ltd (1991) 58 BLR 66: Utilized to define and differentiate qualified expert evidence from non-expert testimony.

Legal Reasoning

The Court of Appeal identified critical legal errors in the trial judge's approach:

• Burden of Proof: The trial judge incorrectly attributed the evidential burden of proving that the sewer was public to Brendon. The Court clarified that the legal burden remained with Brendon to prove that the sewer was not public, especially since under the Water Industry Act 1991 (WIA 1991), sewers are presumed to be private unless proven otherwise by the party asserting their public nature.
• Expert Evidence: The exclusion of Mr. Tony Griffiths' expert opinion was deemed inappropriate. The Court affirmed that Mr. Griffiths, with nearly four decades of experience in sewerage, qualified as an expert under the Civil Evidence Act 1972. Therefore, his testimonial opinions should have been admissible, and their exclusion was an error.
• Limitation on Claims: The trial judge misapplied the Limitation Act 1980 by not appropriately considering whether Brendon could have discovered the mistake through reasonable diligence. The Court emphasized that Brendon should have assessed whether the lack of public sewer designation on maps should have triggered a more thorough investigation earlier.

Impact

This judgment has significant repercussions for similar cases involving sewerage service charges:

• Burden of Proof Clarification: Establishes that the burden of proof remains with the party asserting a positive claim—in this case, Brendon had to prove the sewer was not public.
• Expert Evidence Admissions: Reinforces the standards for admitting expert opinions in civil litigation, ensuring that witnesses with substantial relevant experience can provide their insights without undue exclusion.
• Limitation Application: Provides a clearer framework for applying the Limitation Act 1980 in cases based on mistake, emphasizing the need for claimants to demonstrate reasonable diligence in discovering errors.

Complex Concepts Simplified

Burden of Proof

The "burden of proof" refers to the responsibility one party has to prove their claims in court. In this case, Brendon needed to demonstrate that the sewer serving their premises was not public.

Public vs. Private Sewer

A "public sewer" is maintained by a sewerage undertaker under the WIA 1991, while a "private sewer" is not. The distinction determines who can charge for drainage services.

Expert Evidence

Expert evidence involves testimony from individuals with specialized knowledge relevant to the case. The Civil Evidence Act 1972 outlines the admissibility of such evidence based on the witness's qualifications and relevance.

Limitation Act 1980

This act sets time limits within which legal actions must be initiated. Section 32 deals with actions based on mistakes, specifying when the limitation period starts.

Conclusion

The Court of Appeal's decision in Brendon International Ltd v Water Plus Ltd & Anor serves as a pivotal reference for future litigation involving sewerage charges and related legal principles. By rectifying the misallocation of the burden of proof, affirming the admissibility of qualified expert evidence, and correctly applying limitation laws, the judgment fortifies the legal framework governing sewerage service disputes. Parties engaged in similar disputes must now meticulously adhere to these clarified standards to ensure their claims or defenses are robust and legally sound.