Court of Appeal Clarifies Burden of Proof in Sewerage Service Charges Dispute

Citation: [2024] EWCA Civ 220
Judgment on


The recent case of Brendon International Limited v Water Plus Limited & Anor before the Court of Appeal (Civil Division) revisits several crucial aspects of civil litigation in the United Kingdom, including the restitutionary claim for repayment of overpaid fees, the obligations under the Water Industry Act 1991, and considerations related to the Limitation Act 1980. This article aims to dissect the case, identifying and explicating upon the key topics debated and the legal principles applied.

Key Facts

The crux of the case revolved around Brendon’s claim for restitution of sewerage service charges paid to Water Plus and United Utilities, amounting to over £150,000, dating back to 2000. The dispute focused on whether the sewer into which Brendon’s premises drained was a public sewer, as the charging of such fees by the appellants (Water Plus and United Utilities) presupposed.

In the initial trial, the High Court ruled in favor of Brendon, finding that the sewer was not a public sewer, and thus payments made under this mistake gave rise to a restitutionary remedy. Furthermore, the High Court concluded that the claim was not barred by limitation.

United Utilities and Water Plus appealed, primarily disputing the burden of proving whether the sewer was public and the application of the limitation test.

The appellate court’s analysis touched upon multiple legal principles, which include:

  1. Burden of Proof: At the heart of the appeal was the court’s interpretation of the burden of proof concerning whether a sewer is considered public under the Water Industry Act 1991. The appellate court clarified the distinction between the “legal burden” or “persuasive burden” and the “evidential burden,” emphasizing that the legal burden of proof on certain matters rests with the party asserting them.

  2. Civil Evidence Act 1972: The admissibility and quality of evidence from witnesses with expertise, although not formally expert witnesses, was assessed under the Civil Evidence Act 1972.

  3. CPR 35: The adherence to the Civil Procedure Rules Part 35 for expert witnesses was discussed. Though Mr. Griffiths was a witness with expertise, he was not an “expert” under CPR 35 as he had not been instructed to give or prepare expert evidence for the proceedings. The Court of Appeal clarified that such restrictions and requirements of CPR 35 would not apply to him.

  4. Limitation Act 1980: The Limitation Act 1980 came into play with the appellants contesting the date from which the limitation period commenced, hinging on when Brendon could have, with reasonable diligence, discovered the mistake relating to payments.


On analyzing the legal burden of proof, the Court of Appeal concluded that the Judge had erred by placing the burden on the appellants to establish that the sewer was a public sewer. The court found that Brendon International bore the burden of establishing, on the balance of probabilities, that the sewer was not public.

Regarding the evidence of Mr. Griffiths, the appellate court determined that the trial judge was incorrect to dismiss his evidence and qualifications, given his extensive industry experience.

Finally, the correctness of applying the findings relative to Mrs. James’s subjective state of mind to the limitation question under Section 32 of the Limitation Act 1980 was contested by the appellants. The appellate court agreed that the trial judge did not correctly apply the “discoverability” test.


The judgment provides vital insights into the distribution of burdens of proof in restitutionary cases, the criteria for recognising someone as qualified to provide expert opinion evidence, and the commencement of the limitation period in the context of a mistake. The appellate court’s decision to remit the case back to the Judge underscores the necessity of applying correct legal standards and the nuances involved in evaluating evidence.

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