There are two parts to an opinion:
- The Briefing: that is asking the question, which must include enough of the background information to enable a meaningful answer. Inadequate information or an overdose of information will result in an answer which cannot be relied upon.
- The Opinion: that is a precise answer to the question or questions posed in the Brief. Remember that this is the interpretation of the law in the professional view of the barrister who has been briefed, not as a Sheriff or Judge may hand down.
So it is no good saying "I don't think that I have to pay Water Charges do I ?", because the answer will simply be "I don't know".
Below is the text of an actual briefing on water charges, followed by the actual opinion - the names in both have been replaced [e.g. xxx].
MEMORIAL FOR COUNSEL
RE: NON-DOMESTIC WATER RATES AT LEASED PREMISES
The Memorialist, [Name, etc] is the Defender in a commercial action brought by Scottish Water Business Stream Limited ("BS") (Company Number SC294924). The action relates to unpaid non-domestic water and waste charges that are alleged to be owed by the Memorialist. Parties are presently in an adjustment period, with the Memorialist's adjustment period ending on [date] and a period of mutual adjustment due to end on [date]
The Memorialist is the tenant under a lease of part of a larger building, known as [identity of leased premises] situated in [landlords building] (the "Building"). The Building is owned by a company unconnected to the Memorialist. The Memorialist leases (the "Leased Premises"). The Building has an unmetered water supply.
The Memorialist advises, and BS's solicitors do not dispute, that the Leased Premises do not have physical water or waste connections. It is accepted by the Memorialist, however, that they have use of toilet and kitchen facilities elsewhere in the Building. We understand that these are communal, i.e. not leased out to any other third parties.
BS's case as initially plead was that the Leased Premises constituted "eligible premises" in terms of sections 6 and 27 of the Water Services etc. (Scotland) Act 2005 (the "2005 Act"). The Memorialist's initial primary defence was that absent the Leased Premises being connected to the mains water and/or mains sewerage system, the Leased Premises could not be "eligible premises". Accordingly, BS had no statutory entitlement to fix, demand or recover charges in terms of section 6 of the 2005 Act.
BS's recent adjustments alter their approach. They now seek to argue that the Memorialist is liable to BS owing to the fact the Leased Premises is within the Building. They support this contention with reference to excerpts from a market code. We are of the view that this second step can be attacked.
Our view is that BS realise that they cannot succeed in arguing that the Leased Premises is an "eligible premises", and so have tried to stretch the wording of section 6 of the 2005 Act to a degree that does not appear, to us, to be feasible. Firstly, we would highlight that if the Building is the "eligible premises", the question becomes whom the "occupier" of the "eligible premises" is. We would suggest that the context of section 6 of the 2005 Act does not admit the word "occupier being interpreted in the plural. Secondly, we suggest that the effect of the legislation is to ensure that occupiers of non-domestic premises pay for the water and waste usage of their premises. As noted, there are no water or waste connections within the Leased Premises. It may, however, be that the presence of communal toilet and kitchen facilities elsewhere presents some difficulty with this second point.
- a) Writ, as adjusted to [date]
- b) Answers [by the Defender]
- c) Pursuer's first Inventory of Productions
- d) Pursuer's second Inventory of Productions
- e) Lease between the Memorialist and Landlord, dated [date]
- f) "Water Survey Report" of the Building, dated [date]
Questions for Counsel
We should be grateful if you could provide an Opinion as to whether:
- a) BS can successfully argue that the Memorialist are liable to them for non-domestic water and waste rates as plead by BS in their Writ, as adjusted;
- b) the fact the Memorialist's staff can access communal water and waste facilities elsewhere in the Building alters the position;
- c) it can be argued that as BS have not provided any services to the Memorialist, paragraph 1 of Schedule 2 to the Prescription and Limitation (Scotland) Act 1973 does not apply; and
- d) Whether Counsel has any further comments or suggestions
Dates of the next steps in the court process.
I answer the questions posed in the accompanying Memorial as follows:
1. Can the pursuer successfully argue that the Memorialist is liable to them for non-domestic water and waste rates as pleaded in the initial writ (as adjusted)?
In my opinion, no.
This issue turns upon the proper interpretation of section 6 of the Water Services etc (Scotland) Act 2005 (“the 2005 Act”), which the pursuer seeks to argue gives rise to a liability on the part of the Memorialist to make payment to it for the provision of water services and sewerage services. Section 6 provides:
“(1) The [Water Industry Commission for Scotland] may, subject to section 7 and paragraphs 1 and 2 of schedule 2, grant a licence authorising a person –
(a) to –
(i) make arrangements with the occupier of any eligible premises for or in relation to the supply of water to the premises through the public water supply system; and
(ii) fix, demand and recover charges for or in relation to the supply of water to any premises in respect of which the person has made such arrangements;…
(3) The Commission may, subject to section 7 and paragraphs 1 and 2 of schedule 2, grant a licence authorising a person –
(a) to –
(i) make arrangements with the occupier of any eligible premises for or in relation to the provision of sewerage to, or the disposal of sewerage from, the premises through the public sewerage system; and
(ii) fix, demand and recover charges for or in relation to the provision of sewerage to, and disposal of sewerage from, any premises in respect of which the person has made such arrangements;…
It is also necessary to note the term of section 27(1) of the 2005 Act, which provides a definition of “eligible premises”; it provides:
“In this Part, “eligible premises” means –
(a) in relation to the supply of water, premises which are (or are to be) connected to the public water supply system; and
(b) in relation to the provision of sewerage or the disposal of sewage, premises which are (or are to be) connected to the public sewerage system,
but not any dwelling.”
Further, in terms of section 28 of the 2005 Act, “public water supply system” is defined as all mains, pipes, water treatment works and other similar infrastructure vested in or used by Scottish Water. Similarly, in terms of section 29 of the 2005 Act, “public sewerage system” is defined as all sewers, drains, SUD systems, sewage treatment work and other similar infrastructure vested in or used by Scottish Water.
Taking these provisions together, a person such as the pursuer is only entitled to levy charges under section 6 of the 2005 Act where:
- (1) the person being charged occupies “eligible premises” which are connected to the public water supply system or public sewerage system;
- (2) there is (i) a supply of water, and/or (ii) the provision of sewerage to (and disposal of sewerage from) those premises; and
- (3) the charge is for (i) the supply of water, and/or (ii) the provision of sewerage to (and disposal of sewerage from) those premises.
In the present circumstances, however, these requirement are not met. The premises occupied by the Memorialist under its lease are not connected to the public water supply or public sewerage system and there is no supply of water or provision of sewerage to those premises. On that basis, I am of opinion that the pursuer has no power to be able to charge the Memorialist for the sums demanded in the present action1.
The pursuer seeks to argue in its pleadings that it is entitled to charge the Memorialist on the basis that the subjects it leases are part of a larger building that is connected to the public water supply and public sewerage system. However, while that larger building may well be “eligible premises” for the purposes of section 6 of the 2005 Act, that is not sufficient to give rise to any right on the part of the pursuer to charge the Memorialist. Put simply, it would be the occupier of that larger building who would be liable for charges levied by the pursuer; the Memorialist is not, however, the occupier of the larger building. I would also note that such an analysis accords with the background circumstances. This is consistent with the liability for such charges falling, in the first place, upon the landlord.
In reaching the foregoing view, I have taken into account the English Court of Appeal case of West Pennine Water Board v Jon Migael (North West) Limited  73 LGR 420. In that case, the defendants occupied a shop within a shopping centre. The shop did not have any direct connection to water or sanitary services, but its occupiers had the right to use toilet facilities elsewhere within the centre. A charge was levied by the Water Board under section 31(1) of the West Pennine Water Order 1968, which provided that “the board may, in respect of water supplied to any premises for domestic purpose, charge a water rate”. The Court of Appeal held that, as the defendants had a right to use the toilet facilities, water was being supplied to the defendants’ premises (the premises being regarded, as a result of a definition contained in section 38 of the Water Act 1945, as including all rights ancillary to shop) and a charge might properly be levied. In my opinion, the decision in West Pennine Water Board turns upon materially different statutory provisions, particularly with regard to the definition of “premises”. There was, in particular, no requirement for the “premises” to be connected to the public water supply or public sewerage system (as there is for charging under section 6 of the 2005 Act). On that basis, I do not regard it as in any way cutting across the analysis which I have offered above.
2. Does the fact that the Memorialist’s staff can access communal water and waste facilities elsewhere in the Building alter the position?
In my opinion, no.
For the reasons discussed above, I am of opinion that access to communal water and waste facilities outwith the let subjects does not give rise to any liability on the part of the Memorialist. Such access does not, in my view, amount to a connection of the Memorialist’s premises to the public water supply or public sewerage system.
3. Can it be argued that, as the pursuer has not provided any services to the Memorialist, paragraph 1 of Schedule 2 to the Prescription and Limitation (Scotland) Act 1973 does not apply?
In my opinion, were there to be any liability on the part of the Memorialist to meet charges levied by the pursuer under section 6 of the 2005 Act (which I do not accept), it appears to me that paragraph 1 of Schedule 2 to the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) would have postponed the commencement of the five year prescriptive period such that none of the charges claimed would have been extinguished by prescription.
Paragraph 1 of Schedule 2 to the 1973 Act provides:
“(1) This paragraph applies to any obligation, not being part of a banking transaction, to pay money in respect of –
(a) goods supplied on sale or hire, or
(b) services rendered,
in a series of transactions between the same parties (whether under a single contract or under several contracts) and charged on continuing account.
(4) The appropriate date [for the commencement of the running of prescription] in relation to an obligation to which this paragraph applies is the date on which payment for the goods last supplied, or, as the case may be, the services last rendered, became due.”
In the present circumstances, any charge that might properly be demanded by the pursuer would be for the supply of water (which I would regard as the sale of goods) or the provision of sewerage (which, in my opinion, a court would regard as the provision of a service for the purposes of paragraph 1 of Schedule 2 to the 1973 Act). Moreover, it would appear fairly plain that the pursuer has sought to levy charges on an ongoing account basis – I refer, in particular, to its pleadings in Article 9 of the initial writ. Taking these factors together, if any charges might properly be demanded by the pursuer, I am of opinion that a court would regard paragraph 1 of Schedule 2 to the 1973 Act as having been engaged in the present case, such that none of the sums demanded have been extinguished by operation of prescription.
4. Does Counsel have anything else to add?
I have nothing further to add, save to note that, if there are issues arising from this opinion that agents would wish to discuss further, they should contact me at the Advocates’ Library (or by telephone or e-mail).
THE OPINION OF [Counsel] [Date]