B & D Clays & Chemicals Limited v Castle Water Limited

By a majority, regulation 8 of the Water (Meters) Regulations 1988 establishes a comprehensive code for proving the volume of water supplied by reference to a meter.

A properly certified reading from a meter which, on statutory testing, is within the prescribed limits of error is the basis for calculating and recovering charges. Other evidence cannot be used to establish that the meter was defective or to measure the supplied volume differently. Snowden LJ disagreed on that interpretation, but agreed that the evidence was insufficient and that the appeal should be dismissed.

Castle Water supplied commercial premises owned by B & D Clays & Chemicals and claimed £28,014.37 for water charges calculated from two meter readings. One meter produced an unusually high reading. Although both meters subsequently passed the prescribed accuracy test, Clays relied on expert evidence suggesting that the disputed meter might have malfunctioned.

The Deputy District Judge accepted that other evidence could establish a defect despite a passing test and dismissed the claim. On Castle’s appeal, HHJ Simpkiss held that the Regulations formed a comprehensive statutory regime and allowed the claim to proceed on the certified readings. Clays appealed to the Court of Appeal on statutory interpretation, factual findings and remittal. The central issue was whether regulation 8 permitted evidence other than the prescribed meter test to displace a reading from a meter that had passed that test.

The appeal was dismissed. Lewis LJ gave the leading majority judgment, with Peter Jackson LJ agreeing. Snowden LJ agreed with the outcome but differed on the interpretation of regulation 8.

1. Majority construction. Regulation 8, read with the enabling provisions of the Public Utility Transfers and Water Charges Act 1988 and the Regulations as a whole, provides a comprehensive code for measuring water supplied and determining charges. A properly certified meter reading is evidence of the supplied volume unless the meter is proved to be registering incorrectly. Under regulation 8(3), that occurs when statutory testing shows that the meter exceeds the prescribed limits of error. Regulations 8(4) and 9 provide the consequences and adjustment mechanism where that test is failed. The majority applied the orthodox contextual and purposive approach to statutory interpretation, including the approach referred to in R (O) v Secretary of State for the Home Department [2023] AC 255 and R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 249.
2. On the majority view, the court cannot use other evidence to show that a meter was defective or to measure the volume supplied differently where the meter has passed the prescribed test. The possibility of a transient or intermittent fault does not alter that construction. Peter Jackson LJ considered that the statutory scheme’s coherence, scale and avoidance of disproportionate disputes reinforced the conclusion.
3. Ground 2. Lewis LJ held that the issue did not arise after Ground 1 succeeded. He nevertheless concluded, as did Peter Jackson LJ and Snowden LJ, that the expert evidence was insufficient to establish that the meter had recorded incorrectly. The expert had not internally examined the meter and had relied substantially on information from an absent witness. Primary factual findings were for the trial judge, not the expert.
4. Snowden LJ’s dissent. Regulation 8(1) stated that a reading was evidence, not conclusive or exclusive evidence, and regulation 8(3) did not expressly exclude proof by other means. In his view, other evidence could in principle establish that an earlier reading was inaccurate despite a later passing test, particularly in a rare transient-fault case. He would have allowed Ground 1 but dismissed the appeal on Ground 2.

• Court of Appeal (Civil Division): appeal dismissed. [2026] EWCA Civ 171.
• County Court at Brighton: Deputy District Judge Ginesi accepted that other evidence could prove a meter defective despite a passing statutory test and dismissed Castle Water’s claim.
• County Court at Brighton on appeal: HHJ Simpkiss held that the Regulations created a comprehensive regime under which certified readings could be displaced only where the meter was shown by testing to register incorrectly, and allowed Castle Water’s appeal.