Goddard v Megac Ltd. & Anor

An easement granting a right to take and convey water does not ordinarily impose positive obligations on the servient owner. A claim based on Abbahall Ltd v Smee requires an escaping hazard engaging nuisance or negligence principles. A supply of potentially contaminated water through a pipe is not an escaping hazard where the alleged contamination already exists at the bore hole, is not shown to originate on the servient land, and the deed contains no obligation as to water quality. A claim with no real prospect of success may be disposed of summarily or struck out.

The claimant owned The Lodge, which benefited from a 1974 deed granting a right to take water from a bore hole on land associated with Alderbury Hill House. He alleged that the defendants owed duties concerning the quality and supply of the water. The pleaded case did not expressly rely on hazard, nuisance, negligence or a duty of care.

The defendants applied for summary judgment under CPR rule 24.2 or, alternatively, for strike-out under CPR rule 3.4(2). The central issue was whether the facts could support an Abbahall Ltd v Smee-type claim, either as pleaded or by amendment.

1. Application granted. The claimant accepted that his case was effectively “Abbahall or nothing”. The court held that it was neither and struck out the claim.
2. Scope of Abbahall Ltd v Smee. That decision concerned modern nuisance and negligence principles arising from a hazard escaping from one part of a building into another. It did not establish a general positive obligation arising from the existence of an easement. The relevant concept was an escaping hazard and a measured duty of care in relation to that hazard.
3. No escaping hazard on the facts. The alleged contamination was most likely attributable to run-off from higher adjoining land. The water was apparently contaminated when it emerged from the bore hole and passed first to Alderbury Hill House and then to The Lodge. There was no evidence that the second defendant knew of the contamination or that the water was unusable for domestic purposes other than drinking. The court regarded it as virtually impossible to characterise the supply as a hazard of the kind contemplated in Abbahall Ltd v Smee.
4. Effect of the deed. The 1974 deed granted a right to take and convey such water as was required for domestic purposes. It imposed no obligation to ensure that the water was drinkable. An easement, broadly speaking, does not cast positive obligations on the servient tenement. The claimant could not convert the easement into an obligation to purify the water.
5. The existing pleading contained no case based on hazard, nuisance, negligence or duty of care. Amendment could not create a viable Abbahall Ltd v Smee-type claim because the facts disclosed no escaping hazard. The claim was therefore struck out. Costs were to be determined by an agreed formula, or restored to the judge if agreement could not be reached.

This was a first-instance application in proceedings commenced by claim form dated 9 February 2005. The judgment records no earlier appellate decision.