The Human Rights Act 1998 was heralded as marking a significant change in our legal system.
To date, its impact has been muted. However, in February of this year in Marcic v Thames Water, the Court of Appeal left the door on human rights ajar for people adversely affected by works, or the lack of them, carried out by public authorities.
Mr Marcic lived in Stanmore, Middlesex. His house stood at the lowest point of Old Church Lane, under which ran a foul sewer and a surface water sewer.His house was regularly and seriously flooded by overflow from both sewers.A mere 15 minutes of heavy rain was sufficient to cause flooding. Mr Marcic claimed against Thames Water - which was responsible for the sewers - in nuisance, and under the Human Rights Act 1998.
His claim was that the failure to provide a proper drainage system infringed his right to respect for his home. Marcic was a test case, fought by Thames because of its potential liability to numerous households similarly at risk.
By the time of the trial, Mr Marcic had been waiting nine years for his flooding problem to be addressed.
Almost nothing had been done by Thames during that time, although Mr Marcic had taken steps himself to try to protect his home. Experts agreed that major engineering works would be needed to stop the flooding.
The problem Mr Marcic faced with pursuing his nuisance claim was that Thames' obligations were defined by the statutory framework under which it operates. Essentially, Mr Marcic's case was that Thames should have carried out works to the sewers; Thames said that it could not be obliged to do so. The judge at first instance decided, after lengthy consideration of the statutory provisions, that Thames was right.
But rather than leaving Mr Marcic without a remedy against Thames, the judge went on to decide that the human rights claim succeeded.
Thames' failure to carry out works to bring to an end the repeated flooding of Mr Marcic's house interfered with his human rights.
Both parties appealed. Mr Marcic appealed against the finding that his nuisance claim failed.
Thames appealed against the finding that Mr Marcic's human rights had been infringed. The Court of Appeal allowed Mr Marcic's appeal and rejected Thames'.
In finding that Thames was liable in nuisance, the Court of Appeal's judgment focused on the common law and statutory provisions in that area. It did not dwell long on the human rights aspect, it being unnecessary having found for Mr Marcic on the other grounds. However, what was said about the claim suggests there is potential for human rights to be brought into play in similar circumstances.
The Court of Appeal went further than the judge at first instance who, in considering the claim, had accepted that there had to be a balancing act between Mr Marcic's rights and the competing interests of Thames'other customers.
The judge had agreed that Thames had a wide margin of discretion in deciding how best to allocate its available funds, and how to plan and prioritise its works.
However, having taken those matters into account, he concluded that, on the facts, Mr Marcic's rights had been infringed.
The Court of Appeal hypothesised that Thames' system of priorities might have been entirely fair, and that system might have resulted in no works being planned to assist Mr Marcic in the foreseeable future. Following the reasoning of the judge at first instance, that would have left Mr Marcic with no remedy. The court doubted whether such a result would accord with Mr Marcic's human rights. That suggests that a public authority may have to pay compensation to individuals adversely affected by its carrying out of its tasks, even if those tasks are properly carried out for the benefit for the community as a whole.
This potentially calls into question the liability of public authorities carrying out discretionary statutory functions in numerous areas, even if their discretion is exercised reasonably. It may not be long before another sewerage claim, or a tree root claim, or pest control claim, or pollution abatement claim, appears that tries to push the door open further.