Big floods and court battles

Possible legal action being taken against United Utilities over the severe flooding in Cumbria is part of a growing pattern. And with utility companies' obligations set to be increased, the outlook is for more and more litigation. Dean Stiles reports.

United Utilities (UU) faces possible legal action from Cumbrian residents who claim the company's management of a reservoir worsened the effects of the November floods.

Workington-based solicitors KJ Commons & Co has set up a website to gather potential claimants. The company is acting on behalf of a small group of individuals who are seeking to take legal action against UU claiming it released water from its Thirlmere Reservoir.

It is not the first time that a water utility has faced legal action but it is part of a pattern of increasing claims against utility companies, says Kate Hamilton-Ryan, partner and expert in property litigation at Manchester law firm Pannone LLP.

"In our experience there are an increasing number of claims brought against utility companies. This may be due to an increasing tendency for insurers to refuse to insure against flooding or increased premiums for such. In turn, this lack of insurance may lead to the public seeking to recover their loss from elsewhere with one possible route of recovery being litigation," says Hamilton-Ryan.

Contractors and water companies should track the progress of the Flood and Water Management Bill, currently before Parliament. "If introduced as an Act this may substantially affect the obligations placed upon utility providers in relation to reservoirs and other flood risks," says Hamilton-Ryan.

In the Cumbrian case, KJ Commons & Co has set up a website for its case against UU. The solicitors say the website has been established purely by way of assistance to those who have suffered because of the flooding.

Individuals who register are under no obligation but will be informed of the response from UU and of any developments in the case. KJ Commons will contact and formally invite registrants to participate in legal action once it has completed its investigations, and if it believes there is a case to answer. KJ Commons is acting for a group of people affected by the floods who claim UU released water from its Thirlmere Reservoir and exacerbated the flooding. The reservoir outflow feeds the River Derwent, which flows through Cockermouth and on to Workington, the towns worst hit by the floods.

KJ Commons asked UU to make a detailed pre-action disclosure about a wide range of issues, including:
  • All inspections of the reservoir conducted under Section 26 (1) of the Reservoirs Act 1975 and any recommendations made as to measures to be taken in the interests of safety, together with copies of any engineer's certificate
  • A copy of the Flood Plan prepared pursuant to Section 12A of the Act and copies of all reports and recommendations made by the Supervising Engineer under Section 12 of the act
  • Access to all maintenance and repair records for the three years commencing 20th November 2006 for the abstraction pumps and aqueduct, together with information as to the time the pumps were switched off on 19th November 2009 and the reason for the switch off
  • Water level records for the period October 27, 2009 to November 20, 2009 as required to be kept by Section 11 of the act
  • Details of the means by which the reservoir level was "dropped" on November 19, 2009 despite continuous, heavy rain and the closure of pumps
The solicitors have said that they will take action under Section 33 of Supreme Court Act 1981 if UU does not voluntarily provide the information.

UU has acknowledged the information request, made immediately before Christmas, and told the firm in a letter published on the KJ Commons website that any legal action will be "vigorously defended".

In a statement, UU said: "The flooding in Cumbria during November was caused by an exceptional rainfall event, not the management of Thirlmere reservoir. The reservoir has always been and continues to be managed in consultation with local stakeholders, including Keswick Flood Action Group."

UU management of the reservoir was called into question after two Workington residents told MP Tony Cunningham that the floods might have been worsened by flows from Thirlmere. Cunningham wrote to United's chief executive, Philip Green, asking for an explanation and his detailed response, in which he denied that UU deliberately exacerbated the flooding, formed the basis of KJ Commons & Co's investigation. Green's letter has not been made public but he is reported to have said: "Thirlmere reservoir had been overflowing the dam spillway since 27 October following heavy rainfall. UU had been releasing water into the outflow throughout October and November, and continued doing so when severe rainfall was forecast on 18 November.

"On 20 November, the reservoir's main abstraction outlet which takes water to the water supply network was closed off due to water turbidity caused by a landslip into the reservoir the day before. The closure protected drinking water supplies in areas as far away as Manchester, and meant that 220M extra litres per day overflowed the spillway."

The decision to close the main abstraction outlet was taken "in full consultation and agreement with the Environment Agency", and after the water level had started to subside, said the letter.

The releases into St John's Beck made no material difference to the outward flow as the same volume would have flowed over the spillway anyway. "We do not believe that UU deliberately, or indeed accidentally, exacerbated the flooding caused by the unprecedented amounts of rainfall," Green wrote.

In a letter to UU published on its website, KJ Commons & Co questions the means by which the water level at Thirlmere subsided on November 19 despite continued rainfall. It suggests that the severe rainfall was "entirely foreseeable and indeed forecast some days beforehand".

KJ Commons said that if it concludes that there is a case to answer, it will commence proceedings for compensation.

Inspections
The potential litigation against UU highlights the need for utility providers and those who own or control reservoirs to take steps to protect themselves in the event of litigation in similar circumstances.

"Important to those who are responsible for the control, maintenance and use of reservoirs is the Reservoirs Act 1975 which places statutory obligations upon them and which at law could be used to suggest negligence," Hamilton-Ryan says.

"One important step that utility providers can take is to ensure that any reservoirs that they control or own are inspected. These inspections should take place from time to time and be performed by an independent qualified civil engineer who should provide a report of the result of the inspection.

"It is advisable for an inspection to be performed following the creation of a reservoir, the acquisition of control of a reservoir, any alteration to a reservoir and always within ten years of the last inspection. A utility provider should introduce any recommendations made in the expert's report," she says.

Hamilton-Ryan adds: "Another important step for utility providers to take is to keep records of the flow of water, the water level, leakages, settlements over works and repairs in relation to any reservoirs that they control or own. Utility providers should also appoint a supervising qualified civil engineer to supervise the reservoir, keep them advised of its behaviour and to ensure that they comply with all of their obligations.

"Utility providers should also prepare a flood plan setting out the action that they would take in order to control or mitigate the effects of flooding which are likely to result from any escape of water from the reservoir. These steps will help utility providers to fulfil their obligations and will also be of great practical use in minimising flooding and maintenance issues."

Contractors who maintain and control reservoirs on behalf of utility companies are also under the same obligations. They should also be aware of the potential of litigation being brought against them and should take the same safeguards, Hamilton-Ryan says.

"Unfortunately, outlining an ultimate 'safe defence' for utility providers remains difficult as an expert on reservoirs and flood prevention would need to ascertain the details of what would amount to a sufficient inspection and flood plan. In light of this it would therefore be sensible for utility providers and contractors to seek such advice before putting the above steps into place," she says.

"If the potential litigation against United Utilities is brought and is successful then it may be the case that the potential chance of success in similar cases is increased and this may lead to law firms becoming more confident in offering 'no win - no fee' style actions," Hamilton-Ryan said.

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