Jurisdiction(s):
United Kingdom

NRSWA 1991 s82 does not oust common law; FSG payments irrecoverable under s82(1)(b) (Southern Gas Networks v Thames Water, EWCA Civ)

Published on: 09 February 2018

Published by a LexisNexis Dispute Resolution expert

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Article summary

Southern Gas Networks plc v Thames Water Utilities Ltd [2018] EWCA Civ 33, [2018] All ER (D) 132 (Jan) What are the practical implications of this case?

The key takeaway for advisers to suppliers is that common law causes of action may endure alongside the detailed statutory scheme governing undertakers. That remains so even when a dedicated statutory liability clause exists that could yield a remedy on identical facts. Whether the common law persists is ultimately a matter of construing the specific provisions in play. Clauses that negate exoneration can assist, but they are not essential. The court’s reasoning draws on a well-established line of dicta: mere differences between the statute and the common law do not suffice; to displace the common law, the court must identify an ‘inconsistency’ or ‘incompatibility’ between them. For instance, if the common law would confer a more expansive remedy than the statute, allowing it to continue would cut across the statute’s purpose in imposing tighter limits, and must therefore be taken as not intended. Here, the statutory remedy proceeded on the basis of strict liability, rather than requiring proof of fault, and thus offered a...

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