Duffy v Lamb (t/a Vic Lamb Developments) [1997] EWCA Civ 1373
An easement allowing electricity to pass through neighbouring land prevented the owner from physically cutting off that passage. It did not require him to buy or pay for the electricity.
Facts
Mr Duffy became the tenant of Unit 1 at Downland Business Park in 1985 and bought its freehold from Manby Estates Limited in 1986. Electricity reached the unit through a main meter and a submeter in a tower block on land retained by Manby. The electricity board billed Manby, which then charged the individual occupiers for their consumption.
The conveyance granted rights for electricity and other services to pass through installations on the retained land. The grant covered installations already present and those installed in the future. Mr Lamb bought the retained land, including the tower block, in 1989, and the existing billing arrangements continued.
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After difficulties collecting electricity charges from Duffy’s tenant, Lamb wanted Duffy to arrange a separate supply. They disagreed over who should pay for the necessary work. In May 1994, Lamb cut off the electricity passing to Unit 1. Duffy claimed that the interruption had prevented him from letting the unit and sought an injunction and damages.
A district judge granted relief, including an inquiry into damages. On appeal, the county court judge dismissed the action. Duffy then appealed to the Court of Appeal.
Issue
The existence of the easement was not disputed. The question was whether Lamb’s disconnection unlawfully interfered with the right of passage, or merely ended a supply which he had no obligation to provide. This required the court to distinguish a property right over the service installations from a contractual obligation to supply electricity.
Decision and reasoning
The Court of Appeal unanimously allowed Duffy’s appeal. Millett LJ explained that the easement imposed a negative obligation: Lamb must not obstruct the passage of electricity. It did not impose a positive obligation to arrange or pay for a supply. Nor had a fresh contract requiring Lamb to supply electricity been pleaded or found.
The court applied Rance v Elvin (1985) 50 P & CR 9, which concerned water passing through neighbouring land. Although there were physical differences between water and electricity, they did not justify a different interpretation of the rights granted here.
Lamb argued that the right protected only electricity which had already entered his installations. The court rejected that narrow reading. A right to uninterrupted passage necessarily protected electricity entering the retained land as well as travelling across it to Duffy’s unit. Physically disconnecting the supply therefore interfered with the easement, even though Lamb was not obliged to purchase electricity for Duffy.
The judges left open a different question: what would follow if the electricity board discontinued the supply or removed equipment, including at Lamb’s request. Their discussion did not establish that Lamb could lawfully achieve through the board the interruption he could not make himself.
Outcome and significance
The court restored the inquiry into damages and awarded Duffy the costs of the appeal and the proceedings below. It did not assess the amount of damages or decide whether they would be substantial. Duffy did not seek restoration of the injunction.
The decision illustrates the distinction between allowing a service to pass through land and undertaking to provide that service. The absence of a duty to pay for electricity did not entitle the owner of the land carrying the installations to obstruct the easement.
