Scottish Water Business Stream are suing so many of their clients that they have developed a, not altogether correct, standardised writ.
If a writ is defended, and that is easy, the pursuer can then change it and resubmit it with another argument, ad nauseam.
Knowledge of the Erroneous Arguments have been gathered from many sources including the Scottish Government, Water Industry Commission for Scotland, Scottish Water Revenue Protection Department, and companies authorised to raise water charges incluing Scottish Water Business Stream and Clear Business | Water.
Many of these arguments have been tried by firms such as Brodies in various court cases, are listed [not in an particular order] as follows:
This is the basic argument.
The law is clear that a premises is only liable for water charges if the premises meets the rules defining what an eligible premises are.
See the article entitled Water Charges - The Law
The next argument is that CMA Scotland makes the rules. It doesn't. It cannot as its not Parliament, but a private limited company. This is dismissed in the article entitled Water Charges - The Problem and Solutions
Benefit of Services or "Unjustified Enrichment"
Another argument is that because you have access to toilets and or a kitchen facility you are benefiting from the services provided by Scottish Water. That is physically incorrect. You are benefiting from the provision by the Landlord of the toilets and or a kitchen facility. The Landlord is responsible for charges as his "facilities" meet the rules defining an Eligible Premises.
It is NOT your problem that the Landlord has not been charged by Scottish Water Business Stream or whoever.
Usually the Landlord will include the charges that he pays in the Service Charges that he charges you.
The law relating to Unjustified Enrichment is not overly complex, even though it might be described as a developing doctrine. It appears to us from the textbooks that the Claimant must meet all of the following criteria:
- Was the defendant enriched?
- Was the enrichment at the expense of the claimant?
- Was the enrichment unjust ?
- Does the defendant have a defense?
- What remedies are available to the claimant?
The responses to the criteria above in the situation under discussion - a tenant in a premises which is NOT an Eligible Premises under Section 27 of the Act, can sensibly argue as follows:
- Not at all. The defendant is a tenant possibly making use of a facility belong to another - the Landlord.
- No. As the Landlord is, or ought to be, paying water charges the claimant is not suffering any loss.
- The claimant's claim is unjust because it flies in the face of Section 27 of the Act.
- The defendant has a case that he is not liable under Section 27 of the Act
- The claimant, if it is not already charging the Landlord, ought to be.
It seems quite clear that the doctrine of Unjustified Enrichment cannot be sensibly applied to a tenant who is not occupying an Eligible Premises.
Landlords Facilities included in your Rateable Value
Yet another argument is that the rateable value assessment of your premises includes your share of the Landlord's facilities, etc which include inter alia the corridors, lifts, stairs, etc etc.
"Rateable Value" is an assessment for taxation purposes of the amount of rent that the Landlord could be assessed as collecting. It is well defined in the Scotland Rating Act of 1854. The Landlord could not sensibly let out the toilets and or kitchen facilities on their own. So they have a zero rateable value. Thus the boundary of your premises is what is "rated", and it cannot include the Landlord's zero rated areas.
Charging on the basis of Rateable Value has been put to nought by the Ministerial Directive - See the article entitled Water Charges - The Law
Lord Denning MR said so - 11th March 1975 in England
A long running dispute between West Pennine Water Board and Jon Migael (North West) Ltd eventually went to the Court of Appeal. In their judgement of 11th March 1975 Lord Denning and two others found for the Water Board. The Act quoted was The Water Act, 1945, Section 38.
However in 2005, the 1945 Act which applied to Britain was superseded by the Water Services etc. (Scotland) Act 2005.
Another argument from Business Stream
This is a quote from an email from Business Stream to Nicola Sturgeon's Constituency PA
I can confirm that under Section 29 of the Water Industry (Scotland) Act 2002, Scottish Water has the authority to create a charging scheme for all charges that apply to customers. This is agreed with the Water Industry Commission for Scotland (WICS) and non-domestic licensed providers such as Business Stream must follow this charging scheme and not exceed the default charges set by WICS.
Yet another argument - this one from Clear Business
Another nonsense. In effect, attempting to state that Section 27 of the 2005 Act does not apply.
Under the Water Services etc. (Scotland) Act 2005 Part 2 – Provision of water and sewerage services an eligible premises
- (a)…premises which are (or are to be) connected to the public water supply system; and
- (b)…premises which are (or are to be) connected to the public sewerage system
Under the Water Services (Scotland) Act 2002, Section 35 – Liability of Occupiers etc. for charges confirms that:
- Supplies of water provided by Scottish Water to any premises and the provision and maintenance by Scottish Water
of communication pipes and supply pipes for the purposes of such supplies are to be treated for the purposes of this
Act as services provided to the occupier for the time being of those premises.
- The provision of sewerage, and the disposal of sewage, provided by Scottish Water are to be treated for the
purposes of this Act as provision to, or as disposal for, the occupier for the time being of any premises which –
- Are drained by a sewer or drain connecting, either directly or through an intermediate sewer or drain, with a public sewer provided for foul water or surface water or both, or
- Are premises the occupier of which has, in respect of the premises, the benefit of facilities which drain to a sewer or drain so connecting.
As you can see from the above, neither the 2002 or 2005 Acts require a premises to have a direct connection to either a water supply or a sewer or drain and occupiers will be liable for charges where they have benefit of the services provided to the premises. For example, a multi-tenancy premises with communal water facilities that are not provided on a metered supply and/or are not covered by the owner of the premises under a tenancy agreement will result in each tenant being charged for water services at the applicable rate. Using the same example of a multi-tenancy premises, each of the tenants will benefit from the overall property and road drainage services provided by Scottish Water (unless there is a private drainage system installed at the premises) and will therefore be liable to pay their share of the sewerage charges.
We note that the above assertion is erroneous as in 2005, Section 27 introduced the definition of Eligible Premises.
Jon Rathjen - Team Leader Water Industry Team
See the article Water Charges - Scottish Administration Reviewed.
It is not conceivable that a government clerk can issue directions which can alter the law, and be held up in a Court of Law.
And recently it appears he has changed his mind ... see the article Water Charges - Emails with the Water Industry Team, Scottish Government, and his email of 19th September 2017.
The Unreasonable Sheriff by his abuse of the Reasonable Man
Coming soon ... but the case has not been published so is not yet public.
A law student recently commented that he had failed when making an argument, to make the steps from one part to the next short and simple. Using the "Reasonable Man" to make an unreasonable step is of course a nonsense and best left to "Judges of Repute" like Lord Denning MR.
A Layman's Conclusion
Its all a shambles.
Its expensive, unnecessarily time consuming, and a waste of public money wrongly tying up the courts.
Questions to be asked
- Why don't Scottish Water know the law ? It's their Revenue Protection Department who classify premises as being eligible.
- Why don't Scottish Water Business Stream know the law either ? If they were accredited to ISO9001 [they aren't] they would ask for verification.
- Why don't Scottish Water Business Stream's lawyers know the law either ? It is them who raise the writs which fail.
- Why don't the Courts put an end to this nonsense - it is repeated time and again.
- And lastly, why doesn't The Audit Commission for Scotland properly investigate this waste of public money - let alone that wasted by the organisations being sued ?
To a layman all this means that the many writs in effect contain nonsense - that is, they contain words which are NOT sensible - viz quoting the law incorrectly.
Or is it a political decision to try and raise taxes ? Who knows.