On 28 June 2024, Richard Smith J handed down judgment following the Stage 1 trial in Surrey Searches Limited and Others v Northumbrian Water Limited and Others [2024] EWHC 1643 (Ch), giving the High Court’s first ruling on the scope and application of the EIR.
This claim concerns CON29 Drainage and Water Reports and Commercial Drainage and Water Reports. These Reports are used in property transactions to inform the purchaser about water and sewerage connections and related issues. The Claimants are hundreds of personal search companies. In the period from December 2013, the Claimants bought millions of these Reports from the Defendants, which are the 9 regional water and sewerage companies in England. The Claimants then sold the Reports on to their own customers, for a profit. The Claimants now claim that all the information contained in the Reports falls under the EIR and so should have been provided by the Defendants for free, or alternatively a lower price. On that basis, the Claimants claim restitution of all (or alternatively, part) of the sums which they paid to the Defendants. The quantum claimed exceeds £150 million.
The issues for determination at Stage 1 were concerned solely with the interpretation and application of the EIR to the information contained within Reports, in particular:
whether such information was ‘environmental information’ within the meaning of Regulation 2(1) EIR;
whether that information was ‘held’ by the Defendants within the meaning of Regulation 3(2) EIR at the time the Report was requested;
whether that information was already publicly available in the same or a different format and easily accessible for the purposes of Regulation 6(1) EIR;
whether that information was ‘personal data’ under Regulation 13 EIR and, if so, whether its disclosure under the EIR would contravene the data protection principles;
whether the Reports are subject to the charging regime in Regulation 8 EIR.
In a judgment which provides the first High Court analysis of the application of the EIR, Richard Smith J found overwhelming in favour of the Defendants, holding that:
The majority of the information contained within Reports is not ‘environmental information’ within the meaning of the EIR;
Some of the information in the Reports which is ‘environmental information’ within the meaning of the EIR, was not ‘held’ by the Defendants when the Report was requested;
The Claimants were not entitled to withdraw, in closing, a number of admissions made as to the public availability of the relevant information;
The majority of the information found to be environmental information and held by the Defendants is already publicly available and easily accessible for the purposes of Regulation 6(1) EIR, the Judge observing that the Claimants’ case to the contrary had an “air of unreality” at times;
Information about internal sewer flooding is personal data within the meaning of Regulation 13 EIR and disclosure of such information would breach the data protection principles;
The EIR regime does not govern orders for Reports or the amount that can be charged for them.
A copy of the judgment can be found at the link below.
Edmund Nourse KC, James Nadin and Jade Fowler appeared on behalf of Northumbrian Water, United Utilities, Yorkshire Water, South West Water, Wessex Water, Thames Water and Southern Water and related companies (Ds 1-3, 7-10 &12), together with Timothy Pitt-Payne KC and Hannah Ready, instructed by Eversheds Sutherland (International) LLP.
View Judgment