Duffy v Lamb (t/a Vic Lamb Developments)

An easement granting the free passage of electricity through service installations on servient land does not oblige the servient owner to purchase electricity or maintain the installations. It does, however, require the servient owner to refrain from positive acts that prevent electricity entering the servient land and passing through the installations to the dominant land. The distinction between an obligation to supply and a negative duty not to interfere applies equally to electricity and water. Disconnecting a submeter so that electricity cannot reach the dominant land is actionable interference with the easement.

The claimant owned Unit 1 under a conveyance granting rights of passage of electricity through service installations on retained land. Electricity reached Unit 1 through meters and cables situated on land later acquired by the defendant. After a dispute about unpaid charges, the defendant disconnected the submeter supplying Unit 1.

The District Judge granted declaratory and injunctive relief and ordered an inquiry as to damages. The County Court judge allowed the defendant’s appeal and dismissed the action, holding that the easement protected passage only and imposed no obligation to supply electricity. The claimant appealed to the Court of Appeal. The central issue was whether disconnecting the submeter constituted interference with the right of passage.

1. Appeal allowed. The order of the District Judge was restored so far as it directed an inquiry as to damages. The injunction was not reinstated.
2. Per Millett LJ, with whom Morritt and Ward LJJ agreed on the essential reasoning, the easement was a right to the free passage of electricity through service installations. It did not impose a positive obligation on the servient owner to obtain or pay for electricity, or to maintain the existing installations indefinitely.
3. The governing distinction in (1985) 50 P&CR 9 was between a right to a supply and a right to the uninterrupted passage of a supply that reaches the servient land. The absence of a duty to ensure that electricity reaches the installations does not confer a right to take positive steps to prevent its entry.
4. The physical difference between water and electricity was immaterial. Switching off the submeter prevented electricity reaching Unit 1 through the servient land and therefore interfered with the easement.
5. Ward LJ observed, in a separate concurring judgment, that passages in (1985) 50 P&CR 9 concerning refusal to pay for supply and alternative arrangements were obiter. The court nevertheless left open whether the defendant could lawfully procure removal of the installations by instructing the electricity supplier to discontinue supply.
6. The final order was: appeal allowed with costs here and below; order for inquiry as to damages restored.

• Court of Appeal (Civil Division): [1997] EWCA Civ 1373. Appeal from the Great Grimsby County Court allowed. The District Judge’s order for an inquiry as to damages was restored, with costs here and below.
• Great Grimsby County Court: The County Court judge allowed the defendant’s appeal from the District Judge and dismissed the action.
• District Judge: Granted a declaration, an injunction and an inquiry as to damages.