This blog post looks at a recent case which may open the door to more claims against statutory undertakers.
Claims against statutory undertakers are notoriously difficult. The main reason for this is that statutory undertakers are governed by statute. For example, water and sewage undertakers are governed by the Water Industry Act 1991.
The governing statute sets out the undertaker’s duties, together with the remedies available for failure to perform those duties. These duties and remedies, however, are strictly defined and limited, which means that if you suffer damage as a result of what a statutory undertaker has done, your claim will not necessarily be covered by the duties and remedies contained within the statute.
In that case, you will have to look to common law (i.e. non-statute law) to provide you with a remedy; for example, a claim in negligence or nuisance. But if you do decide to pursue a common law claim, the likelihood is that the statutory undertaker will tell you that you cannot pursue such a claim, because of something called the Marcic principle.
What is the Marcic Principle?
The Marcic principle derived from a 2003 House of Lords case called Marcic v Thames Water Utilities Limited. In this case, a homeowner (Mr Marcic) suffered repeated flooding to his house caused by the overloading of a public sewer owned by Thames Water. He made a common law claim, essentially arguing that Thames Water should build more sewers. The House Lords said that Mr Marcic was trying to enforce a statutory duty which had a remedy within the statute. A common law duty would be inconsistent with this statutory scheme and so Mr Marcic did not have a claim under common law.
Statutory undertakers will try and tell you that this principle precludes all common law remedies against statutory undertakers. That, however, is not correct.
In fact, the Marcic case distinguished between large-scale “policy” issues (for which there would be no common law claim) and smaller-scale “operational” issues (for which there might be a common law remedy). Mr Marcic’s claim was in respect of a policy issue (i.e. the number of sewers it should build), and so it failed.
Subsequent cases have confirmed that common law claims in respect of operational issues may succeed, notwithstanding a statutory scheme, where the issues are operational rather than policy.
A very recent case has added weight to this. Here, home owners living next to the sea in Bognor Regis suffered flooding to their house in 2012. They claimed that the flooding had been caused by a valve that Southern Water had installed in the surface water drainage system.
Not surprisingly, Southern Water relied on the Marcic principle, (because the claimants claim was in negligence and nuisance i.e. common law). However, the Technology & Construction Court found that the claimant’s claim was not precluded by the Marcic Principle, because the issue was an operational issue (i.e. a faulty valve) rather than a policy issue.
When defending a claim in nuisance or negligence, statutory undertakers will almost always cite the Marcic principle. It is important to remember, however, that this does not preclude all claims at common law, particularly those relating to smaller scale operational issues.
This blog post was written by Will Cursham.
 2003 UKHL 66
 Section 94 of The Water Industry Act 1991,
 See, for example, Dobson v Thames Water Utilities Limited  EWHC 2021 (TCC)
 Oldcorn v Southern Water Services Limited  EWHC 62 (TCC)