B e f o r e :
LORD JUSTICE GRIFFITHS
LORD JUSTICE BROWNE-WILKINSON
and
SIR GEORGE WALLER (Not present)
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DAVID ELVIN RANCE
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Appellant (Plaintiff)
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-v-
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and
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DAVID JOHN ELVIN
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First Respondent (First Defendant)
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MALCWAY LIMITED
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Second Respondent (Second Defendant)
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(Transcript of the shorthand notes of the Association of Official Shorthand Writers Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2A 3RU.)
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MR. D. RATTEE, Q.C. and MR. M. J. BRINDLE (instructed by Messrs. Freshfields, London EC1) appeared on behalf of the Appellant (Plaintiff).
MR. T. CULLEN, Q.C. and MR. R. G. S. McCOMBE (instructed by Messrs. Gepp & Sons, Chelmsford) appeared on behalf of the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE BROWNE-WILKINSON: This is an appeal from Mr. Justice Nicholls who dismissed a claim by the plaintiff, Mr. Rance, (the owner of Chantry Farm House, Boreham, Essex) that he was entitled to an easement to receive water through pipes lying under the land of the defendant, Malcway Limited ("Malcway").
Chantry Farm House lies to the north of a roadway known as Chantry Lane, Boreham, the western end of which forms a T-junction with Waltham Road. The main water pipe belonging to the Essex Water Company runs along Waltham Road. At the junction of Waltham Road and Chantry Lane there is a water meter monitoring the supply of water from the Water Company's main into a branch pipe running along the side of Chantry Lane. This branch pipe, directly or indirectly, serves not only Chantry Farm House, but also some cottages and other buildings owned by Malcway and a property (Mathcot) not owned by Malcway. The meter and the pipes leading to Chantry Farm House lie on land owned by Malcway. The question is whether the plaintiff as owner of Chantry Farm House is entitled as against Malcway, who as the owner of Malcway's land, to receive water from the mains pipe in Waltham Road through the existing branch and sub branch pipes.
Before November, 1977, both Chantry Farm House and Malcway's land were all in the common ownership of W. Seabrook & Sons Ltd., ("Seabrook"). By a Conveyance dated 18th November, 1977, Seabrook conveyed Chantry Farm House to the plaintiff as purchaser. That conveyance granted the following right: "The right for the Purchaser and his successors in title owner or owners for the time being of the property hereby conveyed in common with all others entitled thereto to the free and uninterrupted passage and running of water soil gas and electricity through the sewers drains and watercourses and water gas and electric pipes wires and cables (hereinafter referred to as 'the services') which are now or may hereafter within a period of eighty years from the date hereof be in or under or over the said road and the Vendor's adjoining or neighbouring land or premises (the Purchaser bearing paying and contributing together with the Vendor or the other owner or owners aforesaid a fair proportion according to the extent which the same are served thereby of the cost of repairing maintaining renewing and cleansing the water gas and electricity services) with all easements rights and privileges proper for laying connecting constructing repairing renewing relaying maintaining and reinstating the same (the Purchaser making good forthwith at his own expense all damage occasioned thereby)".
At the date of the 1977 Conveyance, Chantry Farm House was receiving its water supply through the meter and pipes situated on the land retained by Seabrook. Seabrook was presumably paying the Water Company for the metered supply. It will be noted that the reservation of the right contained no provision as to the Plaintiff paying for any proportion of the cost of receiving the supply. After the 1977 Conveyance, water continued to be supplied to Chantry Farm House in the same manner. There is no evidence one way or the other indicating whether the plaintiff paid Seabrook for the water consumed by Chantry Farm House.
By a Conveyance dated 29th November, 1978, Seabrook conveyed to Malcway the rest of the land and building (except Mathcot). The conveyance to Malcway was made expressly subject to "the easements rights and privileges reserved or granted by the 1977 Conveyance relating to services and drainage but subject to payment of a contribution towards the cost of repairing maintaining renewing and cleansing as set out in the 1977 Conveyance".
Thereafter, the water supply continued as previously to supply Chantry Farm House, the other land and buildings now owned by Malcway and Mathcot. Malcway has paid the Water Company its charges for the metered supply for all water passing through the meter. The plaintiff has not in fact repaid Malcway for the water he has consumed, but has expressed his willingness so to do.
Disputes arose between the plaintiff and Malcway, principally relating to a number of occasions on which the pipes providing the water supply were broken by works being conducted by Malcway on its land. The only outstanding dispute is whether the plaintiff is entitled to an easement to receive the water through the pipes under Malcway's land. Malcway is quite willing that that supply should continue so long as it is the owner, but is not prepared to admit that the plaintiff has any easement to such supply. The importance of the case to the plaintiff is obvious: unless he has a legal right to a continued supply of water the value of Chantry Farm House will be depreciated. Malcway consider the point to be of importance since they do not wish to be liable for interference with an easement if in the future the pipes are again broken.
The case was conducted before the judge on the basis that, as between Malcway and the Water Company, Malcway was solely liable to pay for the metered water, notwithstanding the fact that some of the water passing through the meter was consumed by the plaintiff at Chantry Farm House. Malcway's case was that there could not be an easement to receive water through the meter. It is an essential feature of an easement that it merely requires the owner of the servient tenement to suffer something to be done on the servient tenement: a positive obligation on the owner of the servient tenement to do something is inconsistent with the existence of such an easement. So, it was argued both before the judge and in this court, the plaintiff could not be entitled to an easement to receive its water through the existing pipes since the supply of water to Chantry Farm House required Malcway to pay the Water Company for the water consumed, i.e. it imposed a positive obligation on the owner of the servient land.
The judge accepted Malcway's submission and dismissed the action. He rejected the plaintiff's first submission to the effect that a failure by Malcway to pay the water charges to the Water Company (thereby leading the Water Company to cut off the supply to the meter) would be an actionable interference with an easement. The judge was plainly correct in holding that a positive obligation to pay such charges was quite inconsistent with the existence of an easement giving a right to a supply of water. That argument has not been pursued by the plaintiff in this court. The plaintiff's second submission before the judge and before this court was that even if there was no obligation on Malcway to pay the water charges, if and so long as a supply of water is in fact available in the pipes running to Chantry Farm House, Malcway is obliged not to prevent such supply actually reaching Chantry Farm House. In practice such a right would provide the plaintiff with much of what he requires since Malcway could not refuse to accept and pay the Water Company for the supply to such pipes without cutting off the water supply to its own properties. The judge rejected this alternative submission on the grounds that the drawing off of water in the pipes by the owner of Chantry Farm House necessarily increased the charges for which Malcway would be liable to the Water Company and thereby indirectly imposed on Malcway a positive obligation inconsistent with the existence of an easement.
On the appeal, Mr. Rattee for the plaintiff (who did not appear below) has sought to argue two points. First, he seeks to argue that, as between the Water Company and Malcway, under section 30(1) of the Water Act 1973 as amended by the Water Charges Act 1976 the Water Company is only entitled to demand from Malcway the charges for the water consumed by Malcway and that accordingly no such obligation to pay for water consumed by the plaintiff as was relied upon by the judge in fact exists. He relies on an unreported decision in this court, Anglian Water Authority v. Castle (23rd February, 1983). Mr. Cullen, for Malcway, protests at this argument being put forward saying that the point was not argued below; if it had been there would have been further evidence and an application by his client to join the Water Company as a party. I am not satisfied that the point now raised by Mr. Rattee was ever clearly before the judge. Although the judge was referred to the Castle case, the reference was principally for the purpose of relying on a dictum as to easements and not for the purpose of relying on the actual decision as to who was liable to pay the Water Authority for the water. In my judgment, it would be wrong to allow the point to be argued for the first time here since, if this court were to hold in favour of the plaintiff on the new point, Malcway might be left in the position that the Water Company was not bound by our decision and would not accept it. This is the more likely as the point appears to be one of considerable importance to water authorities generally.
Before coming to Mr. Rattee's second argument, I must emphasise that the sole ground for the judge's rejection of the plaintiff's claim was that the right claimed would impose on Malcway a positive obligation to pay the Water Company and that such positive obligation was inconsistent with an easement or any other right enforceable against a successor in title of Seabrook. That result is, on the face of it, surprising since at the date of the 1977 Conveyance the actual water supply to the plaintiff's land was exactly as it is today and the grant of the right to passage of water through the land retained by Seabrook was in the common form for a grant of an easement for the passage of services.
Mr. Rattee's second submission was that the judge had wrongly identified the easement claimed: he submits that the positive obligation which the judge held to be fatal to the plaintiff's claim relates not to an easement for the passage of the water through the pipes, but to the right to receive a supply of water in the pipes at all, a right which he does not now claim. Mr. Rattee made what to my mind is a crucial distinction between two distinct types of right, viz: (a) A right to a supply of water; and (b) A right to the uninterrupted passage of any water that may come into the pipes under Malcway's land.
The plaintiff is now claiming only the right of type (b). Then, says Mr. Rattee, the positive obligation to pay water charges which the judge found to be fatal to the plaintiff's claim is not an incident of the right of type (b): such obligation relates only to the supply of the water by the Water Company to the meter. If someone (be it Malcway or someone else) pays for such supply and water gets into the private water system, Malcway is not entitled to stop such supply passing through the system. Such a right to the free and uninterrupted passage and running of water through the pipes on the property in 1977 is exactly the right granted by the 1977 conveyance and is a classic example of an easement. Malcway is entitled at any time to refuse to pay for the supply of water through the meter, but in that event the plaintiff would be free to make its own arrangement with the Water Company.
Mr. Cullen, for Malcway, submits that this analysis of the right granted is over-refined. He says that the reality of the case is, as the judge found, that the plaintiff is actually claiming a right to the supply of the water which he is in fact using and that therefore the easement claimed is a composite easement both to the supply of the water and to the passage of the water through the pipes. Therefore, as the judge held, the easement claimed does impose the indirect positive obligation on Malcway to pay for the water consumed on the alleged dominant tenement, Chantry Farm House.
In my judgment, Mr. Rattee's submissions are correct. Looking first at the 1977 Conveyance itself, the right granted is a right simply to the passage of water and no more. It does not purport to confer any right to insist on someone else ensuring the presence of water in the pipes. However, if water in fact reaches the private pipe system under Malcway's land by any means whatever, there is appurtenant to Chantry Farm House a right that such water shall be permitted to pass through the pipes to Chantry Farm. No positive obligation is imposed on Malcway by such right to the passage of water supplied by another. It is the classic form of an easement of passage. Malcway cannot do any physical act interrupting the passage of such water without being liable for an actionable interference. On the other hand, Malcway is under no obligation to ensure that any water does in fact reach the private water system.
The matter can be illustrated by considering what would have been the position if there had originally been no meter through which the water passed from the main into the pipes. There could not in my judgment have been any question but that Chantry Farm House was entitled to an easement for the passage of such water. If thereafter a meter had been installed by Seabrook or Malcway in order to obtain a supply of water for its own purposes, that could not have defeated the easement to the passage of the water to Chantry Farm House. The obligation to pay for such supply would arise not from the existence of the easement for the passage of water, but from the arrangements made by Malcway for the supply of water to the private system. Similarly, given the express grant of an easement in the 1977 Conveyance, I cannot see that it makes any difference what arrangements for the supply of water had been made by Seabrook before 1977 and continued thereafter by Seabrook and Malcway.
The crucial distinction between a right to supply of water and a right to the passage of water is clearly demonstrated by Schwann v. Cotton (1916) 2 Ch. 459. In that case Blackacre, Greenacre and Whiteacre had all formerly been in common ownership and the owner of Whiteacre denied that Blackacre was entitled to an easement to pass the water from Greenacre to Blackacre. This court held that the Will which effected' the severance of the three properties operated to devise Blackacre with the right of passage of such water as might flow through the pipe and to devise Whiteacre subject to such a right. It was further held that although the right of Blackacre to a supply of water from Greenacre had not been established, the possible lack of any right to such water as against Greenacre did not impair the validity of the right to the passage of water through Whiteacre. By parity of reasoning, in the instant case the source of the supply of water is the Water Company and comes from land included neither in the servient nor the dominant tenement. The dominant tenement (Chantry Farm House) has not demonstrated any right to the supply of water itself. Even so, Chantry Farm House is entitled to the right for the passage of such water as comes through the pipes under Malcway's land in just the same way as the owner of Blackacre was entitled to the passage of water under Whiteacre.
I would therefore allow the appeal and hold that there is appurtenant to Chantry Farm House an easement for the passage of any water coming into the pipes on Malcway's land through those pipes to Chantry Farm House. Any physical interference by Malcway with the passage of such water (e.g. by fracturing the pipes or turning off the supply) would be an actionable interference with the easement. But Malcway is under no obligation to ensure that any water ever comes into those pipes.
That is enough to dispose of the appeal, but it may be helpful to the parties if I say a word about the provision of water to the properties. As I have said, Malcway is under no obligation to make arrangements with the Water Company for a supply of water through the meter. If Malcway were to refuse to pay for such supply and the Water Company therefore determined it, it would be open to the plaintiff to make his own arrangements with the Water Company for such supply. But, since Malcway needs the supply for its own purposes, it is in practice most unlikely to refuse to take the supply.
So long as the supply through the meter serves properties in different ownerships, questions will be bound to arise as to what liability there is to pay for the proportion of the water consumed by each owner. Mr. Rattee wished to submit in reliance on the Castle case that the Water Company was only entitled to charge Malcway for the water actually used by Malcway and that the owner of Chantry Farm House was himself liable to pay directly to the Water Company the charges for the water consumed by the plaintiff. If this is right (as to which I express no view) there would be no problem. But the Water Company is insisting on Malcway paying for all water passing through the meter and practicalities suggest that Malcway will have to do so. The plaintiff has voluntarily agreed to install a meter at his boundary and to repay Malcway for the water the plaintiff consumes. In my view, he would in any event be liable in quasi contract to reimburse Malcway for expenditure by Malcway on water supplied to the plaintiff impliedly at the request of the plaintiff. It could not be right that the plaintiff is entitled to use water for which, to his knowledge, Malcway has paid without coming under an implied obligation to reimburse Malcway.
LORD JUSTICE GRIFFITHS: I have had the advantage of reading the judgment of Lord Justice Browne-Wilkinson and I agree that this appeal should be allowed for the reasons contained therein.
SIR GEORGE WALLER: I agree. The dispute between the parties originally involved a number of matters, including claims for damage to the water pipe between Chantry Lane and Chantry Farm. Before us, however, the issues were narrowed and the principal questions were (1) Did the benefit of any, and if so what, easement continue when the ownership of the servient tenement changed, and (2) if some benefit passed, was it sufficient to make the respondents liable if they caused damage to the pipe. There was also a third question relating to payment for water used by the appellant.
When the appellant purchased Chantry Farm in 1977 he must have believed that he was assured of a supply of water to the house. He relied on the words in the schedule to the conveyance. It was only when the land through which the supply pipe ran was sold to the respondent that difficulty arose, because if the clause imposed a positive duty on the servient land, the burden would not pass to the purchaser. The judge came to the conclusion that the clause imposed a positive duty to supply water and therefore the burden did not pass when the land was sold to the respondent. I am satisfied that the easement was not wide enough to impose such a positive duty. The words of the clause refer only to the free and uninterrupted passage and running of water and those words do not include supply. In Schwann v. Cotton (1916) 2 Ch. 459, this court held on the particular facts of that case that there was an easement of a right of passage of such water as might flow through the pipe. This case has some similarity. The obligation was limited to a duty to allow water to flow along the pipe. It was not a duty to supply water. If the respondent did not pay, and as a result the Water Company cut off the supply, the plaintiff would have no claim. On the other hand, to take an absurd example as an illustration, if the Water Company supplied water free, the respondent would be under an obligation not to interfere with the running of the water. The fact is, however, that the respondent cannot obtain a supply of water for his own needs through the present pipe without allowing water to flow along the pipe to Chantry Farm. I agree with Lord Justice Browne-Wilkinson that there is an easement with a negative burden, namely to allow water to flow along the pipe and not to damage the pipe. This would include a duty to allow the pipe to remain in the land and a duty not to interfere with it.
There remains the question of payment for water taken by the appellant. We are told that the Water Company installed the meter close to its own main supply pipe at a point just inside the respondent's land and is not prepared to deal separately with different properties able to draw water from the pipe after the water has passed the meter. This is unfortunate, because to have done so would have avoided most of the present litigation. However, we have to deal with the facts as they are. If the appellants draw water from the pipe then the meter will record the flow and the respondent will have to pay extra, because of that extra flow. The appellants are quite prepared to install a meter which will measure the -water which they take and quite prepared to pay the respondents for that proportion of the respondent's liability to the Water Company. The question arises, however, as to whether or not the appellants are under any legal obligation to do so. The Water Company does not provide a free service and whenever a supply of water is provided payment must be made for the service. Thus, if the appellants draw 1,000 gallons of water, the respondents will have to pay an extra amount representing 1,000 gallons. In my opinion, this is not just a moral obligation. When the appellant draws that 1,000 gallons of water he knows that the respondent will have to pay the Water Company and the respondent knows that his account is being increased by the amount of water taken by the appellant. In these circumstances, I am of opinion that the implied contract arises and the appellant is obliged to reimburse the respondent the amount by which his liability to pay the Water Company has been increased by the water which he has drawn. If the appellant did not pay, I am of opinion that the respondent could sue for the money and if the circumstances demanded it could sue for an injunction pending payment.
LORD JUSTICE GRIFFITHS: For the reasons contained in the judgments of the court which have been handed down this appeal will be allowed.
MR. RATTEE: I am much obliged. I wonder if I can ask your Lordships now to consider making two consequential orders. Your Lordships may remember that there were sought in the action and by the notice of appeal a declaration and an injunction and in the course of the hearing it was found that the injunction that was sought was not in a very appropriate form and my Lord, Lord Justice Browne-Wilkinson, particularly pointed out that it was unreasonably wide as indeed it was. May I hand up to your Lordships a document on which I have had typed out two paragraphs, one the form of the declaration and one the form of the injunction which I have given to my learned friend? I know he has certain comments on them.
LORD JUSTICE GRIFFITHS: We have not got Sir George Waller sitting with us. Is there any substantial difference between the two of you?
MR. RATTEE: I think there is to this extent. The form of the declaration and the fact that your Lordships should make a declaration as to the existence of the easement I think is not in dispute, but I understand that my learned friend wishes to submit that this is not a case where the court should make any injunction at all, whereas it would certainly be my submission that an injunction is appropriate. So to that extent there is a conflict of some substance.
LORD JUSTICE GRIFFITHS: In the ordinary course we would not want to hear that without Sir George being with us.
MR. RATTEE: I follow that. I am content that your Lordships should deal with the matter with just the two of you. Whether my learned friend is I do not know.
MR. CULLEN: I would be content that your Lordships should deal with it.
LORD JUSTICE GRIFFITHS: How long is it going to take? I had thought I was only interposing a five minute matter.
MR. CULLEN: I do not think it will be more than five minutes.
LORD JUSTICE GRIFFITHS: On that basis we will deal with it.
MR. RATTEE: I am much obliged. Can I hand up the two copies of the document? (Document handed to the Court.) The first paragraph is that there should be a declaration "that by virtue of the 1977 Conveyance there is appurtenant to the Plaintiff's property known as Chantry Farm House, Boreham, Essex, an easement for the passage of any water coming into the pipes in, on or under the Second Defendant's adjoining land through those pipes to Chantry Farm House." That follows virtually the form set out in effect in my Lord, Lord Browne-Wilkinson's, judgment as to the nature of the easement and I understand my learned friend has no objection to that declaration being made.
LORD JUSTICE GRIFFITHS: So be it.
MR. RATTEE: The second paragraph is an injunction "restraining the Second Defendant whether by its officers, servants or agents or otherwise howsoever from interfering with the free running of water to the said Chantry Farm House through the pipes in, on or under the Second Defendant's land and from doing any act which will interfere with the proper exercise by the plaintiff of his right of access to the said pipes or any of them for the purpose of inspecting and effecting repairs thereto."
I ask for an injunction as opposed to your Lordships simply not making any injunction at all for this reason. Your Lordships may remember that the action resulted from repeated interference with the flow of water through the pipes. There had been various operations carried on the Second Defendant's land to cause breakages to the pipe. In particular, hardcore had been dumped on top of the pipe on one occasion. So it is a case where there were repeated interferences with what your Lordships have now held was a right in my client. I would ask your Lordships to grant an injunction in the circumstances of the case, because otherwise if no injunction is granted, true, I get the declaration, but then if there should be some further event of infringement obviously I am left in the position that I have to start another action altogether in order to seek relief based on the declaration of the existence of the right which your Lordships have made in this action.
LORD JUSTICE BROWNE-WILKINSON: What about liberty to apply for an injunction?
MR. RATTEE: I would certainly rather have that than nothing. The position as I understand it (and this is not a matter of evidence before your Lordships, but I will tell your Lordships on instructions and my learned friend may tell you it is wrong) is that my client has discovered that building operations and demolition operations are going to have to be carried out on the Defendant's land in the near future to comply with certain planning regulations. My client is concerned that there may be the risk of further infringements of the right as there have been in the past. He is anxious, obviously, not to go away on the basis that if it does happen again he is going to have to start another action.
LORD JUSTICE BROWNE-WILKINSON: I follow that.
MR. RATTEE: I do suggest that if my learned friend says that his client does not intend to carry out any further act of infringement, that may well be so, in which case I suggest the injunction does not do him any harm, but I do ask that there should be an injunction in support of the right that your Lordships' ruling declared.
MR. CULLEN: I do not object to liberty to apply, but I do say no injunction for this reason. No evidence was led below as to these alleged breakages. For that reason, the defence was not explored. The defence was that the actual breakages were carried out by independent contractors or by tenants of whom my client had no knowledge anyway. The position was that there was no evidence below. There was never any question of deliberate act of infringement by my client. There have never been any threats by my client. Neither of the parties' rights have been spelt out by your Lordships' declaration. My client does not threaten or intend any future act any more than he has in the past. It is right, as my friend has said, that demolition work is being carried out on this farm, but nowhere near the pipe. The plaintiff would be adequately protected by liberty to apply rather than granting an injunction now which might only result in us coming back on a committal motion or something for accidental breakage. In view of the history of this matter, this is not a case for an injunction. If I am wrong on that, I would like to address your Lordships on the form of the injunction which is too wide.
LORD JUSTICE BROWNE-WILKINSON: The whole case was conducted before us and undoubtedly before the judge on the basis of was there reason. You have never said that you yourself intended to interrupt the supply of water at all, otherwise you say the evidence would have been accidental.
MR. CULLEN: Yes.
LORD JUSTICE GRIFFITHS: There is no doubt about where the pipe runs, is there?
MR. CULLEN: Not now, no.
LORD JUSTICE GRIFFITHS: The route of the pipe is clear.
MR. RATTEE: May I just say one thing about my learned friend's comment that below there was no evidence at all of a deliberate infringement? I am told by my learned junior who your Lordships know was there and I was not, that in fact it was agreed between the parties below that if my client won the action an undertaking would be offered not to infringe the right and it was on that basis that the question of deliberate infringement or negligent infringement was not explored. I can only pass that on to your Lordships. I personally was not there and I cannot tell your Lordships with my own knowledge that that was said.
MR. CULLEN: From my recollection I cannot recall it, but if my friend says that is so I accept it. I certainly cannot recall, because as I say our defence was and I had authorities there on the basis that we were not liable.
LORD JUSTICE GRIFFITHS: The view we take, Mr. Rattee, is that you will be sufficiently protected if we give the liberty to apply.
MR. RATTEE: I am much obliged. Your Lordships then will make the declaration as in paragraph 1.
LORD JUSTICE GRIFFITHS: We will make the declaration as asked in paragraph 1 and give you liberty to apply for an injunction.
MR. RATTEE: I am much obliged. That leaves only the question of costs and I would ask your Lordships to say that the appeal that your Lordships have allowed should be allowed with costs here and below, the costs below to include certain County Court costs which were directed by the learned judge to be taxed on Scale 3, because he ordered them to be paid by my client. I would ask that your Lordships' order should be that my client gets his costs of the appeal and costs below, including the County Court costs taxed on Scale 3.
LORD JUSTICE GRIFFITHS: Can you resist that, Mr. Cullen?
MR. CULLEN: I would say this. There has been a substantial shift in the plaintiff's case. Before the learned judge the action was one for injunction and for damages, no question of their declaration. The primary plank then was that my client was in fact liable to pay for the water. The damages were dropped at the trial, the assertion that my client was liable to pay was dropped before your Lordships and the case was differently presented before your Lordships. I would simply say that in view of that change of stance justice is better done by no order for costs below and my friend to have the costs of the appeal.
LORD JUSTICE GRIFFITHS: Mr. Rattee, what do you say about the submission that you were fighting this case on the basis that the respondent was liable to pay for the water?
MR. RATTEE: Your Lordships may remember that before the learned judge two arguments were put. One was on the basis that the respondent was bound to supply water and the other was on the basis that he was not. If the first was wrong, they were alternative arguments. The learned judge rejected both and your Lordships have held that the learned judge should have accepted the second argument and that is the effect of your Lordships' judgment.
LORD JUSTICE GRIFFITHS: How long did the case take before the judge?
MR. RATTEE: Two days I am told. I do suggest that this is really an example of a case where alternative arguments were put to the learned judge, they were both rejected, your Lordships have held that the action should have succeeded on the basis of one of them and in those circumstances it is quite appropriate that the normal order of costs to follow the event should be made.
LORD JUSTICE GRIFFITHS: When did you first make your offer to pay for the water?
MR. RATTEE: Before the trial most certainly, because I think it appears from the learned judge's judgment. I am waiting for further more specific instructions. I am instructed it was before the trial, right from the beginning of the dispute.
LORD JUSTICE GRIFFITHS: We think the appellants are entitled to their costs here and below to include the County Court costs.
MR. RATTEE: To be taxed on Scale 3?
LORD JUSTICE GRIFFITHS: Yes.
MR. CULLEN: Might I ask for leave to appeal? 'This is a matter of general public importance. Your Lordships' decision would have an effect far beyond the confines of the facts of this particular case. This is the first decision on common form service easements which are contained in countless modern conveyances and leases. While it is right to say that the question of liability and the means of quantification of the amount taken by the plaintiff in the present case has been resolved by an ad hoc solution, in fact matters of principle as the proper way of reimbursement and indeed the question of incurring primary liability dependent upon the subservient owner raises general matters anyway, but beyond that this common form easement contains ancillary rights for laying new pipes connecting up or within the perpetuity period which plainly refers to new pipes. So your Lordships' decision will have effect in that field too as to what rights a dominant owner has under a common form easement in respect of connecting up existing meters and the like. This is a matter which is of considerable importance and is fit for their Lordships' House.
LORD JUSTICE GRIFFITHS: No. We do not give leave.
