CON29DW reports: Water companies awarded 100% of costs
The High Court has refused 14 search providers permission to appeal a ruling dismissing an overcharging claim against the nine English water companies.
Mr Justice Richard Smith also awarded the water companies 100% of their costs.
He held that none of the five grounds of appeal “appeared to me to have a real prospect of success”.
“Nor did they raise any novel point of law rather than, at their highest, being concerned with the application of well-established principles to the particular factual context here. I therefore refused permission.”
In his main judgment in June, the judge rejected the search providers’ argument that all the information needed for a CON29DW report was ‘environmental information’ (EI) within the meaning of the Environmental Information Regulations 2004 and should have been available for free or no more than a reasonable charge.
He held that while 11 of the answers were EI, 14 – ranging from water and sewer maps, assets and connections to low water pressure – were not. The result was that the regulations did not govern orders for the reports or the amount that could be charged for them.
This was the ‘stage 1’ trial, with the defendants’ liability (or otherwise) in unjust enrichment and quantum set for later stages.
In seeking permission to appeal, the claimants argued among other things that the court’s approach in deciding what was EI was wrong in law and inconsistent with the principles underlying the regulations as well as the guidance of the Court of Appeal in two cases.
Richard Smith J responded that the court analysed the decisions “closely, giving effect to those authorities and the objectives of the EIR by taking into account (i) the purpose for which the CON29DW information was obtained and used (not the requesters’ motives) (ii) the nature and quality of the information provided (iii) the wider context of the responsive information and (iv) the extent to which it meaningfully advanced the objectives of the EIR”.
Applying those principles to the CON29DW questions was “a fact-sensitive exercise”.
On costs, he said that standing back from the “minutiae” of what might seem a “somewhat ‘busy’, ‘mixed’ or perhaps even ‘messy’ picture, the reality is that all defendants were, in fact, overwhelmingly successful on the overarching point”.
The fact that some of the defendants may have lost on “a few” of the issues that were live “does not diminish that success”, while none of the arguments on which they lost were “unreasonably pursued” by the water companies.
The claimants had argued that they should only pay 40% or 50% of the different defendants’ costs, and that they should receive 25% of their own costs.
Given “the reality of the defendants’ success overall”, he did not consider that “any reduction or ‘paring back’ from a full award” was warranted.
However, he rejected the defendants’ argument that there were factors which took the case ‘outside the norm’ and they should be awarded indemnity costs.
“Although there were, no doubt, different views on both sides as to how the different issues were best advanced procedurally and frustrations with the stance taken by the other, I was unable to discern conduct so unreasonable on any party’s part so as to take the case outside the ‘norm’.”
On the question of a payment of account, Richard Smith J ruled that the appropriate amount should be 65% of the water companies’ incurred (unbudgeted) costs and 90% of their estimated (budgeted) costs. The ruling did not state what the actual figures were.
We have approached the claimants on whether they intend to seek permission from the Court of Appeal.
Following the ruling in June, a spokesman said: “We are pleased that the court agreed with some important aspects of the claim on environmental information and believe this to be a matter of public importance.
“As we now consider our legal options ahead of a stage 2 trial, we note the court’s guidance to give meaningful consideration to whether this dispute is now capable of resolution and hope that the defendant water companies can do the same.”
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