When Thames Water did nothing to stop a home being flooded by sewage, the common law of England was found wanting. The Human Rights Act mopped up the mess
Technology and Construction Court judges are getting used to grappling with the Human Rights Act in adjudication enforcements. In two reported cases, it was argued that statutory adjudication infringed article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair trial. Both Judge Bowsher (Austin Hall Building vs Buckland Securities, unreported) and Judge Havery (Elanay Contracts Ltd vs The Vestry [2001 BLR 33]) rejected this contention.

However, in another recent decision of Judge Havery – Peter Marcic vs Thames Water Utilities Ltd (unreported) – the Human Rights Act came to the fore in a quite unexpected way.

Peter Marcic lives in Old Church Lane, in Stanmore, Greater London. During times of heavy rainfall, the nearby surface- and foul-water sewers overflow and flood his property. Marcic's garden has been spoiled and his house has suffered cracking and subsidence. Since 1993, he has had to put up with 17 serious incidents. It takes only 15 minutes of heavy rainfall or a few hours steady drizzle to start the flooding. Altogether a damp and depressing picture.

The statutory body charged with operating the sewers in Stanmore is Thames Water Utilities. No one there had taken any effective steps to solve Marcic's problem, so he took legal action. Faced with these facts, anyone on the Clapham omnibus might think that Marcic had an unanswerable case under the good old common law of England. After all, he had paid his rates, Thames Water was in charge of the sewer and the sewers were manifestly incapable of dealing with surface and foul water. Surely the answer was obvious.

Not a bit of it. Marcic's lawyers produced a whole raft of claims: nuisance, negligence, liability under Rylands vs Fletcher, breach of statutory duty … The judge considered each of these grounds and rejected them all. He concluded that, for one reason or another, Marcic had no remedy under the law as it existed before the passing of the Human Rights Act. His lawyers, however, had also included breach of the Human Rights Act, and this succeeded. What does the Human Rights Act have to do with sewage?

Marcic relied on article 8 (right to respect for private and family life) and article 1 of the first protocol (protection of property). These provide that everyone has the right to respect for their private and family life and their home, and that everyone is entitled to the peaceful enjoyment of possessions. As the judge said, one would have thought that these articles had nothing to do with Marcic and his flooding problems. But on looking at the authorities, he changed his mind. In Baggs vs United Kingdom [1985 9 EHRR 235] – a claim for breach of these articles by an applicant whose house was blighted by noise from Heathrow Airport was held admissible. In France, an applicant whose enjoyment of her house was spoiled by a nearby nuclear power station received compensation (S. vs France [1990 D and R 250]). In Guerra vs Italy ([1998 26 EHRR 357]) the European Court held that the effect of toxic emissions from a factory polluting the atmosphere in the applicants' houses fell within article 8. So why not sewage and drain water flooding one's property?

Thames Water was a public authority within the meaning of the Human Rights Act, and it is unlawful for a public authority to act in a way that is incompatible with a convention right. An act includes a failure to act. Thames Water had clearly failed to act and Marcic was clearly a victim and therefore entitled to bring proceedings.

In its defence, Thames Water raised proportionality. It had to strike a balance between the demands of the general interest of the community and the requirement of protection of an individual's rights. The judge accepted this, but pointed out that the burden was on Thames Water to show that this consideration justified the prima facie breach of Marcic's rights. After considering the evidence, the judge concluded that the authority had failed to do so.

It had not shown that the need to protect others from flooding and of striking a fair balance between competing interests of householders justified doing nothing to resolve Marcic's problem.