Dobson & Ors v Thames Utilities

An appellate court may grant permission to appeal from preliminary rulings made on assumed facts where the parties’ positions disclose a genuine issue of principle capable of resolution before trial, particularly where resolution would assist the management of group litigation. A party may withdraw a concession of law where it prevents that issue from being properly argued and may have affected the preliminary ruling. The substantive questions concerning nuisance damages, Article 8, just satisfaction, and alternative remedies under the Human Rights Act 1998 remained undecided.

Approximately 1,300 claimants brought group proceedings concerning smells and mosquitoes allegedly emanating from sewerage works. The claims included property owners and household members without proprietary interests.

On preliminary issues determined on assumed facts, Mr Justice Ramsey held that nuisance damages awarded to persons with legal interests would usually afford just satisfaction to partners and children, although the position could depend on the facts. He considered alternative statutory remedies relevant but could not determine their sufficiency without found facts. The claimants sought permission to appeal on Issues 9, 11B and 10, and sought to withdraw concessions made below. The central question was whether these issues of principle should be resolved before trial.

Application granted. Permission to appeal was granted on Issues 9, 11B and 10. The claimants were permitted to withdraw the concessions made below in relation to Issues 9 and 10, with any costs consequences reserved.

1. The preliminary issues had been decided on assumed facts which remained to be proved. Ordinarily, that made appellate determination undesirable. However, the respondent accepted that Issue 9 contained a genuine issue of pure principle and that resolving it would assist the management of the group litigation. The parties’ positions showed that the issue could, albeit with difficulty, be resolved without found facts.
2. Issue 9 concerned whether, following Hunter v Canary Wharf [1997] 1 AC 655, nuisance damages recoverable by a property owner and measured by loss of amenity would normally afford just satisfaction to a non-property-owning household member’s Article 8 claim. The court did not decide that substantive question. It held that the earlier concession had to be withdrawn so that the issue could be properly argued.
3. Issue 11B contained distinct questions concerning joint property owners’ shares of nuisance damages and a sole owner whose Article 8 entitlement might extend beyond loss of amenity. The judge had largely left the issue open, but had indicated that further damages were unlikely to be necessary and had repeated his view concerning partners and children. Both questions were issues of principle warranting permission to appeal.
4. Issue 10 concerned the relevance of alternative remedies, including abatement proceedings under sections 82 and 80 of the Environment Protection Act 1990 and regulatory action under section 91 of the Water Act. The claimants were permitted to withdraw their concession that those remedies might be relevant and to argue the issue on appeal.

Sedley LJ agreed, although he would have preferred the issues to be reargued after facts had been found. He considered that proceeding to trial on preliminary rulings which incorporated potentially erroneous legal concessions could leave the litigation on a legally false or unstable basis.

• Court of Appeal (Civil Division) [2008] EWCA Civ 473: granted permission to appeal on Issues 9, 11B and 10, and permitted withdrawal of the relevant concessions.
• Queen’s Bench Division, Technology and Construction Court: Mr Justice Ramsey determined preliminary issues on assumed facts. He held that nuisance damages to persons with legal interests would usually afford just satisfaction to partners and children, treated alternative remedies as relevant, and left their sufficiency dependent on found facts.