Brendon International Limited v Water Plus Limited & Anor

In a restitutionary claim for charges said to have been paid by mistake, the claimant retains the legal burden of proving every essential element, including that the relevant sewer was not public. Section 219(1) of the Water Industry Act 1991 is definitional and creates no presumption that a sewer is private or public. The evidential burden is distinct from the legal burden and does not shift merely because evidence emerges.

Opinion evidence from a non-instructed factual witness may be admissible where based on relevant expertise. Independence, self-interest and evidential detail generally affect weight rather than admissibility. For limitation, reasonable diligence under section 32 applies throughout the inquiry and must be assessed objectively by reference to the actual claimant.

Brendon claimed restitution of sewerage charges paid between 2000 and 2019, asserting that surface water from its commercial premises drained into a private rather than a public sewer. The High Court held that the appellants had not proved that the sewer was public, that the charges were unauthorised, and that the claim was not statute-barred: [2022] EWHC 3321 (Ch).

Water Plus and United Utilities appealed on the burden of proof, the exclusion of opinion evidence from a sewerage-industry witness, and the application of section 32 of the Limitation Act 1980. The central issues were which party had to prove the sewer’s status, whether the opinion evidence was admissible, and whether the limitation question had been correctly determined.

Appeal allowed. The High Court order was set aside and the matter was remitted to the trial judge.

1. Burden of proof. The legal burden in civil litigation remains on the party asserting an allegation essential to its case. In this restitutionary claim Brendon therefore had to prove, on the balance of probabilities, that the sewer was not a public sewer vested in United Utilities. Section 219(1) of the Water Industry Act 1991 provides an interpretative definition and does not create a legal presumption that a sewer is private. The incidence of the burden depends on who asserts the relevant status. The evidential burden is different and does not shift. Brendon’s reliance on the sewer map and related statements was sufficient to leave the issue for determination, but the judge still had to assess all admissible evidence. The appellants’ failure to prove their pleaded reconstruction case did not itself establish Brendon’s claim. The distinction between legal and evidential burdens was supported by Emmanuel v Avison [2020] EWHC 1696 (Ch), Jayasena v R [1970] AC 618 and Huyton-with-Roby UDC v Hunter [1955] 1 WLR 603.
2. Opinion evidence. Under section 3(1) of the Civil Evidence Act 1972, qualification to give expert opinion is principally a matter of knowledge or experience. Mr Griffiths’s long experience in drains, sewers and wastewater could not be dismissed as amounting to nothing. Self-interest, lack of independence and insufficient detail ordinarily go to weight, not admissibility. The restrictions in CPR Part 35 apply to a person instructed to prepare or give expert evidence for the proceedings. They did not automatically exclude opinion evidence from a factual witness who had not been so instructed. The principles in R v Robb (1991) 93 Cr App R 161, Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited (No.6) [2008] EWHC 2220 (TCC), DN v LB Greenwich [2004] EWCA Civ 1659 and Rogers v Hoyle [2015] QB 265 supported that approach. The court retained power under CPR 32.1 to prevent circumvention of Part 35, but no such basis had been established.
3. Limitation. Section 32 of the Limitation Act 1980 requires a single objective inquiry into whether the actual claimant could with reasonable diligence have discovered the mistake. Reasonable diligence applies throughout: the claimant must be reasonably attentive to matters it would learn, and a reasonably diligent investigation must then be considered. The judge’s findings about Mrs James’s subjective understanding resolved the mistake and waiver issues but did not answer the statutory limitation question. OTC Computers v Infineon Technologies [2021] QB 1183 provided the applicable approach.
4. The Court of Appeal did not substitute its own factual decision because the trial judge had heard the evidence. The case was remitted for reconsideration applying the correct burden and limitation test, with Mr Griffiths’s evidence to be considered if admissible and relevant. The remittal was not intended to become a retrial or to permit substantial expansion of the pleaded cases.

• Court of Appeal (Civil Division): allowed the appeal, set aside the order and remitted the matter for reconsideration.
• High Court of Justice, Business and Property Courts in Manchester, Business List: HHJ Cadwallader held that the appellants had not proved that the sewer was public, that the charges were unauthorised, and that the claim was not barred by limitation: [2022] EWHC 3321 (Ch).