Herbert Smith Freehills succeeds for Severn Trent in sewerage report dispute

Herbert Smith Freehills has successfully represented its clients, Severn Trent Water and Severn Trent Property Solutions Limited, in a long running and significant dispute brought by a group of personal search companies against all of the major water and sewerage companies (WASCs) in England. 

The claims concerned residential and commercial CON29DW reports, which contain information for property purchasers and owners about a property's water and sewerage assets, and which are prepared and sold by the WASCs. The personal search companies obtained the CON29DW reports from the WASCs and sold them on to the potential property purchasers and owners. The personal search companies also produced competing products with the CON29DW reports which were prepared based on publicly available information and which were more limited in scope than the information provided in the CON29DW reports. 

The personal search companies brought an unjust enrichment claim in the High Court of England and Wales with an estimated value of over £150 million, on the basis that they had been entitled to the information in CON29DW reports sold by WASCs for free as the information constituted "environmental information" under the Environmental Information Regulations 2004 (EIRs). Due to the complexity of issues, the Court split the trial into two stages, Stage 1 dealing with liability under the EIRs and Stage 2 dealing with damages. 

Mr Justice Richard Smith found overwhelmingly in favour of the WASCs. Of the 30 or so questions in a CON29DW report, the Judge found that information responsive to only nine questions could constitute "environmental information" for the purposes of the EIRs. He found that of the information that was environmental information, only limited information was in fact held by the WASCs and that all the information that was environmental information was also either publicly available such that the WASCs were not required to provide it or was subject to a personal data exemption under the EIRs.

The Herbert Smith Freehills team comprised Partners Nusrat Zar and Andrew Lidbetter, Senior Associate Sanam Zulfiqar Khan, and Associates Katie Scarlett-Weatherall and Ha-lim Bashir, who worked closely with the Severn Trent team of General Counsel Didar Dhillon, Head of Legal Judith Worrall and Senior Legal Counsel Chris Rivers.

Nusrat Zar commented: "We are delighted with the very favourable outcome for Severn Trent. The decision is particularly important since an unfavourable result would have not only resulted in significant financial exposure for our client but would also have required the WASCs to reconsider their business model going forward."