Brendon International Limited v Water Plus Limited & Anor

The general rule in civil litigation is that they who assert must prove. So, where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the burden of proving such allegation to the civil standard of proof rests on that party at all times. Accordingly, if, when all the evidence has been adduced, the court does not find the allegation proven on the balance of probabilities, the party upon whom the legal burden rests will lose their claim: see Emmanuel v Avison [2020] EWHC 1696 (Ch) at [54]-[57], referring to Phipson on Evidence (now in its 20th ed.) (“Phipson”) at 6-06.

That burden – usually referred to as the “legal burden” or the “persuasive burden” – is to be distinguished from what is commonly referred to as the “evidential burden”. The “evidential burden” simply describes the obligation of a party upon whom it rests to adduce sufficient evidence for the matter to be left to the tribunal of fact – in other words, to adduce some credible evidence which, if left uncontradicted and unexplained, could be accepted by the court as proof of the fact in question: see Jayasena v R [1970] AC 618 at 624. As Lord Devlin said in Jayasena, it is confusing and misleading to call the evidential burden a burden of proof.

Usually the party who bears the legal burden will also bear the evidential burden. However, and relevantly for the instant case, that position can be altered if a statute creates a rebuttable presumption as to a particular matter. In such a case, the party who would otherwise bear the evidential burden can instead rely on the presumption: see Phipson at 6-02 to 6-03 and 6-18. But this does not entail any modification of the legal burden of proof.

Although reference is sometimes made to the evidential burden “shifting”, this can be misleading. The parties will adduce their own evidence, or obtain evidence by cross-examining the witnesses for the other side. As the case progresses, the weight of evidence may appear to shift from one side to the other as new pieces of evidence emerge. But that is simply a reflection of the provisional state of the evidence at the time, and does not entail the shifting of any burden, whether legal or evidential. In particular, the legal burden of proof will remain throughout on the same party: see e.g. Huyton-with-Roby UDC v Hunter [1955] 1 WLR 603 at 608-609.

Once all the evidence is in, the court will evaluate it, weighing each piece of evidence for and against the disputed proposition, and reaching a decision on where the overall balance of probability lies. In very rare (exceptional) cases, the evidence may either be so evenly balanced or so unsatisfactory that the court, notwithstanding its best efforts to do so, simply cannot reasonably form a view that either of the rival contentions has been proven on the balance of probabilities. In such a situation, the legal burden comes back into play, and the party who bears the legal burden of proving the matter in question, but has failed to discharge it, will lose: see Huyton-with-Roby UDC v Hunter (supra), Rhesa Shipping v Edmunds (The Popi M) [1985] 1 WLR 948 at 955-956, and Stephens v Cannon [2005] EWCA Civ 222 at [46].

In paragraph [15] of his Judgment, the Judge correctly recorded that since the instant case was a claim for recovery of money paid, the legal burden of proving the essential elements of a claim in restitution lay at all times upon Brendon. Brendon therefore had the burden of establishing, on the balance of probabilities, that it had made payment of sewerage charges in the mistaken belief that United Utilities and Water Plus had supplied it with surface water sewerage services, when they had not in fact provided those services.

The critical (and disputed) component of this case was whether United Utilities and Water Plus had not in fact provided the sewerage services for which they had been paid. This required proof that the sewer into which surface water from Brendon’s Premises flowed was not a public sewer within the meaning of section 219(1) WIA 1991. If the sewer to which the Premises were connected was not vested in United Utilities in its capacity as sewerage undertaker, neither United Utilities nor Water Plus as its licensee would be treated as having provided sewerage services within section 144(1)(b) WIA 1991.

However, at [16] of his Judgment, the Judge concluded that the effect of section 219(1) WIA 1991 was that there was a presumption that a sewer was a private sewer. He then stated, at [19],

“19.  I agree that the legal burden of proof of payment for sewerage services under a mistake does indeed lie upon the claimant. But since the question involves a sewer, which is private unless it is public, it seems to me that the evidential burden lies on the person asserting it to be public to establish on the balance of probabilities that it is; and if it does not, it will be found to be private.”

The Judge’s statement that “the evidential burden lies on the person asserting it to be public to establish on the balance of probabilities that it is”, was wrong. It confused the legal burden of proof (which is to establish a fact on the balance of probabilities), with the evidential burden (which, as Lord Devlin pointed out in Jayasena, is not a burden of proof at all). The legal burden was always on Brendon, as claimant, to establish on the balance of probabilities that the sewer was not a public sewer.

I also do not agree with the Judge’s holding that the effect of section 219(1) WIA 1991 was to create a legal presumption that a sewer is private unless the contrary is proven.

Section 219(1) WIA 1991 is (as its title indicates) a general interpretation section which provides a list of defined terms which are used in the Act. In legislation, such sections serve the primary purpose of providing short linguistic labels for concepts that are used in the body of an Act in order to simplify the drafting. As a general rule, however, substantive provisions of law are not incorporated in such definitions: see Bennion, Bailey and Norbury on Statutory Interpretation at section 18.1.

Section 219(1) defines the meaning of the expression “public sewer” as it appears in the WIA 1991 by reference to whether the sewer is vested in a sewerage undertaker in its capacity as such. Section 219(1) also indicates that the expression “private sewer” as it appears in the WIA 1991 “shall be construed accordingly”. To my mind this plainly indicates that the definition of a “public sewer” in section 219(1) is intended to have a conventionally limited interpretative function, rather than any broader role or wider legal consequences.

As such, whilst it is plain that a sewer cannot, for the purposes of the WIA 1991, simultaneously be both a public sewer and a private sewer, I do not consider that section 219(1) was intended to create any presumption as to the status of a sewer either way. Instead, the incidence of the legal burden of establishing the status of a sewer will depend, in the usual way, upon who is asserting that it has a particular status.

So, for example, if a sewerage undertaker was bringing a claim for unpaid charges for the provision of sewerage services to a business, the sewerage undertaker would bear the legal burden of proving on the balance of probabilities that water from the defendant’s premises flowed into a public sewer vested in the undertaker. In that respect Brendon was right to submit, and the Judge rightly accepted, at [17], that in the ordinary course of business a sewerage undertaker that intends to charge people and businesses for services supplied should be ready, if required to do so, to prove that it is entitled to make such charges.

However, if, say, a business was bringing a claim against a sewerage undertaker under one of the specific compensation provisions of the WIA 1991, or more generally for flood damage to its property arising from a failure to maintain a sewer, the legal burden of proving on the balance of probabilities that the sewer was a public sewer would rest on the claimant at all times. We were not given any convincing reason why, as a matter of policy, the normal burden of proof should be reversed in such a case.

It is also worth reiterating that in neither scenario would the legal burden of proof shift from one side to the other during the case.

Returning to the instant case, it follows that in order to make good the constituent elements of its claim in restitution, Brendon had the legal burden of showing that it had made payments in the mistaken belief that United Utilities and Water Plus had provided sewerage services to the Premises. Brendon therefore had the legal burden of establishing, on the balance of probabilities, that the sewer into which the surface water from its Premises drained was not a public sewer vested in United Utilities.

Brendon also bore the burden of adducing sufficient evidence for that matter to be left to the Judge as the tribunal of fact. In that regard, Brendon pleaded the various statements made from time to time by United Utilities that the sewer was a private sewer, together with the fact (which was admitted) that the map of public sewers maintained by United Utilities in accordance with its statutory duty under section 199 WIA 1991 did not show that the sewer was a public sewer until it was amended at some point between March 2018 and January 2019.

It seems to me that those facts and matters were sufficient to discharge the evidential burden upon Brendon, in that they were credible evidence that, if not contradicted or explained, could have been accepted by the Judge as establishing on the balance of probabilities that the sewer was not a public sewer. In particular, it is difficult to understand why reliance on the sewer map which United Utilities was required by statute to maintain should not suffice for that purpose.

But that does not answer the question of whether, in light of all the admissible evidence adduced by both sides, Brendon had established on the balance of probabilities that the sewer was not a public sewer (i.e. a sewer vested in United Utilities in its capacity as sewerage undertaker). Albeit that the state of the sewer map at the relevant time was a relevant and potentially important piece of evidence, it was open to United Utilities, for example, to adduce evidence to explain why its records were inaccurate and to explain why it had been in breach of its statutory duty under section 199 WIA 1991. If it did so then it would be for the court to evaluate that evidence, together with all the other admissible evidence on the point.

In that respect, and notwithstanding that the Judge rejected the defendants’ attempt to rely on an unpleaded alternative case, some of the facts that he referred to in dealing with those arguments, which I have summarised above were not disputed. These included the fact that the sewer was located on land owned by the council, that it ran under the roads on the Estate, and that it served multiple properties on the Estate. There is no reason why such matters should not have formed part of the overall assessment of the evidence. The Judge might also have considered, for example, whether any inference should be drawn from the fact that no evidence was adduced by Brendon of any private rights granted to it on its original acquisition of the Premises from the local authority, despite the existence of private law rights being identified as an issue for disclosure.

However, because the Judge approached the matter in the wrong way, he never actually answered the correct question. He did not ask whether, in light of all the evidence, Brendon had established, on the balance of probabilities, that at the times when the charges were paid, the sewer in question was not a public sewer vested in United Utilities.

Rather, the Judge rejected the pleaded case advanced by United Utilities and Water Plus based upon the contention that the sewer had been upgraded in 2004, and as a consequence held that the sewer was a private sewer. But since the legal burden of proof was not on United Utilities and Water Plus, they did not have to prove any positive case about how the sewer came to be vested (albeit that providing a credible explanation to that effect would naturally assist their cause). Nor did their failure to make out their contention that the sewer had vested as a consequence of being upgraded in 2004 mean that Brendon’s claim necessarily succeeded.

I therefore consider that the appeal should be allowed on this ground. I shall consider what consequences flow from that at the end of this judgment.

Section 3 of the Civil Evidence Act 1972 provides,

“(1)

Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(2)

It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3)

In this section “relevant matter” includes an issue in the proceedings in question.”

There is no definition of an expert or any specific test in the 1972 Act to determine whether a person is “qualified to give expert evidence” for the purposes of section 3. Some broad assistance might be gleaned from the wording of section 4, which deals with evidence of foreign law, and which refers to a person qualifying as competent to give expert evidence “on account of their knowledge or experience”.

There are a plethora of authorities that have sought to describe how a court might identify a person qualified to give expert opinion evidence: see e.g. the discussion in Hodgkinson and James, Expert Evidence: Law and Practice (5^th ed) at 1-011 et seq. A leading case, from the criminal courts and dealing with handwriting, is R v Robb (1991) 93 Cr. App R 161. After referring to Lord Russell’s judgment in R v Silverlock [1894] 2 QB 766, Bingham LJ stated, at 165,

In the same case, at 166, Bingham LJ memorably contrasted the nature of an expert with that of a non-expert, when remarking that a defendant,

As indicated above, the Judge held that there was,

Whilst a trial judge must be given considerable latitude in deciding whether he will be assisted to decide a case by what is proffered as expert opinion evidence, I do not consider that this was an adequate explanation for concluding that Mr. Griffiths was not “qualified to give expert evidence” within the meaning of section 3 of the 1972 Act.

Mr. Griffiths’ witness statement, which he confirmed in his evidence in chief, set out his career history, which included working for Trafford Borough Council “in a drains, sewers and watercourse environment” for 20 years, and then working for United Utilities since 2004 in a series of managerial roles in wastewater and drainage. When Mr. Griffiths gave evidence, there was no challenge to that evidence.

With respect to the Judge, whilst it may fairly be observed that Mr. Griffiths did not descend into detail as to what the various jobs and managerial positions that he had occupied actually entailed, I do not consider that his evidence could simply be dismissed as amounting to “nothing”. At very least the Judge ought to have explained why he thought that a person who had worked for 39 years in drains and sewers, both in an operational and a managerial capacity, did not have sufficient knowledge or experience of the common characteristics of public sewers.

The Judge’s further reliance upon his view that Mr. Griffiths’ evidence was “self-serving for the defendants” was also an irrelevant factor so far as his determination as to whether Mr. Griffiths was qualified as an expert for the purposes of section 3. Questions of the independence of a person giving expert opinion evidence and whether their evidence is unbiased go to weight and not admissibility under section 3. Similarly, whilst a lack of detail to support Mr. Griffith’s opinions might cast doubt upon its accuracy or reliability, that goes to weight and not admissibility.

I therefore conclude that the Judge’s decision to exclude Mr. Griffith’s evidence on the basis that he was not adequately qualified to give expert opinion evidence within section 3(1) of the Civil Evidence Act 1972 cannot stand.

The Judge did not, in terms, indicate that he was also excluding Mr. Griffiths’ evidence for failure to comply with CPR 35, although he strongly hinted at that with his comment that the evidence was inadmissible under section 3 “quite apart from the procedural requirements of Part 35 of the CPR”. If that was a further factor in the Judge’s decision to exclude Mr. Griffith’s evidence, then it would have been wrong.

Section 3(1) of the 1972 Act has effect “subject to any rules of court” and there is no doubt that CPR 35 is such a rule of court. However, the restrictions and procedural requirements imposed by CPR 35 on the use of “expert evidence” are limited by CPR 35.2 which defines an “expert” for the purposes of Part 35 as “a person who has been instructed to give or prepare expert evidence for the purpose of proceedings”. Such restrictions and requirements would therefore not apply to Mr. Griffiths, who had not been so instructed. As such, if it was otherwise admissible under section 3 of the 1972 Act, the fact that Mr. Griffiths’ opinion evidence was not given in accord with the requirements of CPR 35 would not mean that it was inadmissible.

The position of witnesses who give both evidence of fact and evidence of opinion in a field in which they have particular expertise was considered in Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited (No.6) [2008] EWHC 2220 (TCC). At [667]-[672], Jackson J stated,

“667.  The question then arises as to whether [the witness] is confined to giving evidence of fact, without including his expert opinion on matters. Alternatively, can he include statements of professional opinion bearing upon facts within his personal knowledge?

668.  This question arises in many fields of litigation, for example professional negligence actions where the defendant is a witness of fact but also wishes to justify his actions by drawing upon his professional experience. This question arises with particular frequency in litigation in the Technology and Construction Court. Most factual witnesses called are possessed of technical knowledge and expertise. In relation to major engineering projects … those factual witnesses are likely to have very considerable expertise. Otherwise they would not have been engaged upon such projects in positions of responsibility.

669.  Despite the diligent researches of counsel, there is relatively little authority on the extent to which witnesses, who are possessed of special expertise, can gloss their factual evidence with expert comment.

670.  In Lusty v Finsbury Securites Ltd (1991) 58 BLR 66 the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work. In DN v LB Greenwich [2004] EWCA Civ 1659 the Court of Appeal dismissed an appeal against the trial judge’s finding that an educational psychologist had been negligent. One of the issues in the appeal concerned the admissibility of opinion evidence given by the psychologist. Brooke LJ said this:

“25.  It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or be reference to reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible…

26.  Of course a defendant’s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility…”

671.  As a matter of practice in the TCC, technical and expert opinions are frequently expressed by factual witnesses in the course of their narrative evidence without objection being taken. Such opinion evidence does not have the same standing as the evidence of independent experts who are called pursuant to CPR rule 35. However, such evidence is usually valuable and it often leads to considerable saving of costs.

672.  Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience. For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past….”

That decision was referred to without any adverse comment in Rogers v Hoyle [2015] QB 265. That case concerned the slightly different issue of the admissibility in civil proceedings of a published report prepared for different purposes by a third party expert air crash investigator. In the Court of Appeal, at [62]-[64], Christopher Clarke LJ stated,

“62.

… Section 3 of the 1972 Act does not purport to be all embracing or to restrict or alter the position at common law. The expert with whom CPR 35 is concerned is a person “who has been instructed to give or prepare expert evidence for the purpose of proceedings”. The expert evidence referred to in CPR 35.1 and 35.5 and the expert’s report referred to in CPR 35.4 and 35.10 are the evidence and report of such a person. The purpose of CPR 35 is to regulate the evidence of experts instructed by the parties, to ensure that they act as experts, and to regulate the use and content of their reports….

63.

CPR 35 is not a comprehensive and exclusive code regulating the admission of expert evidence. It regulates the use of a particular category of expert evidence …

64.  The courts have in practice received expert evidence outside the confines of CPR 35. Thus in DN v Greenwich London Borough Council [2005] LGR 597 this court held that the trial judge was wrong to decline to allow the defendants to a professional negligence claim to rely on the opinion evidence contained in the witness statement of a school educational psychologist who was said to have been negligent. That decision was applied by Jackson J in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2220 (TCC) where he ruled that an engineer giving factual evidence could also proffer statements of opinion reasonably related to facts within his knowledge and relevant comments based on his own experience…”

On this basis, the Judge would not have been justified in thinking (if he did) that Mr. Griffiths’ opinion evidence was rendered inadmissible because it was not given in accordance with CPR 35.

By a Respondent’s Notice, Brendon contended that even if the Judge was wrong to exclude Mr. Griffiths’ opinion evidence for the reasons that he gave, his decision to exclude it could be upheld, either because the evidence should have been excluded pursuant to CPR 32.1 by reason of Mr. Griffiths’ lack of qualifications, his lack of independence and his lack of impartiality, or because his opinions were in any event irrelevant to the determination of the issues that remained after rejection of the defendants’ alternative case.

As regards matters relating to Mr. Griffiths’ qualifications, independence and impartiality, Brooke LJ indicated in Lusty v Finsbury that if expert opinion evidence is admissible under section 3 of the 1972 Act, it is for the trial judge to assess what weight (if any) to give to the opinions of someone who is not an independent expert instructed in accordance with the strictures and safeguards of CPR 35.

It is true that at first instance in Rogers v Hoyle, Leggatt J referred, at [121], to the court’s inherent power to control its own procedure and specifically to the provisions of CPR 32.1 that give the court power to control the evidence that it receives, and, in particular, to exclude evidence that would otherwise be admissible. In that regard, I quite accept that CPR 32.1 or the inherent power of the court to control its own proceedings would enable a court to exclude evidence which it considered was designed to circumvent or undermine CPR 35. This might be the case, for example, if the court had given specific directions under CPR 35 for the production of a limited number of independent expert reports, but one party chose, in addition, to invite a factual witness who had some expertise, to volunteer his opinions on the very issues that the court had directed to be addressed by the experts under CPR 35. However, I am not aware of any such directions having been given in the instant case, the Judge made no adverse findings as regards the reasons for Mr. Griffiths’ statement containing opinion evidence, and I do not consider that this court is in any position to do so.

As regards the alleged irrelevance of Mr. Griffiths’ opinion evidence, I see potential force in Brendon’s submission. However, the Judge did not express a view on whether the evidence was in any event irrelevant to the pleaded cases upon which he gave his judgment, and again I do not think that it would be appropriate for us to attempt to do so.

I shall return to consider the consequences of my conclusions in these respects at the end of this judgment.

Section 32 of the Limitation Act 1980 applies to cases of fraud, concealment or mistake. In respect of mistake, it provides that in the case of an action for relief from the consequences of a mistake, the period of limitation shall not begin to run until the claimant has discovered the mistake, or could with reasonable diligence have discovered it.

As indicated above, the Judge summarised the law in this respect by reference to Paragon Finance plc v Thakarar [1999] 1 All ER 400 at 418 and Davies v Sharples [2006] EWHC 362 (Ch) at [59]. We were also referred to OTC Computers v Infineon Technologies [2021] QB 1183 (a case not cited to the Judge).

OTC Computers was a case of concealment, but as Males LJ noted, at [46], the same approach to discoverability with reasonable diligence under section 32 must be capable of application to cases of mistake. Having referred (among other cases) to Paragon Finance, Males LJ stated, at [47]-[48],

“47.

… although the question what reasonable diligence requires may have to be asked at two distinct stages, (1) whether there is anything to put the claimant on notice of a need to investigate and (2) what a reasonably diligent investigation would then reveal, there is a single statutory issue, which is whether the claimant could with reasonable diligence have discovered (in this case) the concealment. Although some of the cases have spoken in terms of reasonable diligence only being required once the claimant is on notice that there is something to investigate (the “trigger”), it is more accurate to say that the requirement of reasonable diligence applies throughout. At the first stage the claimant must be reasonably attentive so that he becomes aware (or is treated as becoming aware) of the things which a reasonably attentive person in his position would learn. At the second stage, he is taken to know those things which a reasonably diligent investigation would then reveal. Both questions are questions of fact and will depend on the evidence. To that extent, an element of uncertainty is inherent in the section.

48.  Third, while the use of the words “could with reasonable diligence” make clear that the question is objective, in the sense that the section is concerned with what the claimant could have learned and not merely with what he did in fact learn, the question remains what the claimant … could have learned if he had exercised such reasonable diligence. That must refer to the actual claimant … and not to some hypothetical claimant.”

The appellants’ criticism of the Judge is not that he should have answered the question under section 32 by reference to some hypothetical claimant rather than Brendon. It is clear from OTC at [48] that the Judge was right to ask the question posed by section 32 by reference to Brendon in the form of its owner and controller, Mrs. James.

The appellants’ criticism relates to the Judge’s finding at [116], that

“116.  I have already found, however, that [Brendon] did not discover the mistake until February 2018, and had not been put on enquiry as to the mistake before that date. Accordingly, no part of the claim for sums paid after time started running is statute-barred.”

The only basis for the Judge’s remark that he had already found that Brendon had not been put on enquiry before 2018 was in the earlier passages at [109]-[112] to which I have referred above. In those paragraphs, the Judge found that although Mrs. James had been informed in 2009 that the public records did not show any public sewer in the vicinity of the piece of property to be reacquired, due to the fact that she was busy and her lack of any particular knowledge of drainage bills, Mrs. James did not actually “put two and two together” and hence did not actually realise that Brendon was not receiving the sewerage services for which it was being charged. The Judge then concluded, at [112],

“112.

… I do not consider that at any point before [receiving the report of Cadantis in 2018, Brendon] had been put on notice that it might not be liable in a way which required it to make enquiries which it had deliberately chosen not to undertake.”

The appellants contend that these findings were addressed to the subjective question of mistake and waiver of enquiry, and did not address the different question for limitation purposes, which was whether, given Mrs. James’s actual knowledge that the searchable records showed no public sewer in the vicinity, if Mrs. James had (objectively) exercised reasonable diligence she could have “put two and two together” and discovered that Brendon had not received the sewerage services for which it had paid.

In that respect, the appellants contend that in circumstances in which Mrs. James had read the 2009 report on drainage stating that the sewer map did not show any public sewers serving the piece of property to be acquired, and containing the question and answer,

“Q4.1 What is the basis for charging for water supply and sewerage at this property?

Answer Please refer to vendor or pre-contract documentation.”

I agree with the appellants that the Judge does not appear to have asked himself the right question in relation to limitation. The fact that Mrs. James did not realise the possible significance of the contents of the drainage report was sufficient to resolve the issue of mistake and the deliberate waiver of enquiry, but it was not sufficient to answer the test under section 32 of the 1980 Act.

By its Respondent’s Notice, Brendon advanced a number of points on the evidence which it contended would have led the Judge to the same conclusion if he had applied the correct test under section 32. These very much focussed upon the overall context of the transaction in which Mrs. James saw the 2009 drainage report. Brendon suggested, for example, that question 4.1 and its answer was a point at the tail end of a report in dealing with both water supply and drainage in relation to the reacquisition of a parcel of land adjoining what was then the Premises, but which itself had no drainage.

It also submitted that the appellants had not alleged, and there was no evidence to suggest, that if Brendon had followed up and referred to the vendor or to the pre-contractual documentation in relation to the parcel of land being reacquired, this would have revealed anything in relation to the sewerage charges for the main part of the Premises. Brendon further pointed out that at no point did anyone (including its own solicitors) think to raise the issue of whether it was being properly charged for sewerage services in relation to the main part of the Premises.

These may, or may not, be good points on the evidence, but they are highly fact-sensitive and I do not consider that this court is in the best position to resolve them and to reach a decision on whether Brendon can satisfy the requirements of section 32 of the 1980 Act.

It follows from the above that in my view the appeal should be allowed and the Judge’s order set aside.

I have considered whether, having read the materials and the transcripts, this court could simply substitute its own determination of the issues for that of the Judge, but I have come to the conclusion that this would not be possible or appropriate. The Judge heard all the evidence over several days, which was an advantage that this court does not have. Although the Judge made errors of law, there is no reason to believe that his ability fairly to re-evaluate the evidence would be compromised. I therefore consider that the matter should be remitted to the Judge to remake his decision in light of this judgment.

The precise scope of the remittal hearing should be a matter for the Judge having regard to the overriding objective, including proportionality and the saving of costs. Primarily, I envisage that the Judge should re-evaluate the evidence heard at trial, applying the correct burden of proof and the correct test under section 32 of the 1980 Act. The evidence may also include the opinion evidence of Mr. Griffiths if the Judge, having reconsidered the matter, finds that he is qualified to give expert evidence and if his evidence is relevant.

For the avoidance of doubt, the Judge will also be able, if he thinks it appropriate, to have regard to some of the matters to which he referred when considering and rejecting the appellants’ unpleaded alternative case. However, for my part I do not intend the remittal to be taken by the parties as an encouragement to seek to expand their pleaded cases in any material respect or introduce any substantial new evidence. I certainly do not envisage that it should be necessary or appropriate for there to be anything resembling a re-trial.