Michael Vincent Parkin and Others named on the Group Register v Alba Proteins Ltd and Others

Hearing dates: 17 th & 18 th July, 2013

On 17 ^th and 18 ^th July 2013 I heard submissions on issues relating to limitation and allied matters. I reserved my judgment, indicating that I would hand it down in writing as soon as possible. This I now do.

The Claimants ("Cs") live in the area of Penrith, Cumbria. They claim an injunction and damages for what is alleged to be a continuing nuisance by odour caused by rendering operations at premises in that area known as the Wildriggs site ("the site"). The operations at the site are of a kind which requires an environmental permit. In this case the regulator is the local authority, Eden District Council ("EDC"), and the evidence in the case includes various documents relating to the granting and varying of permits.

It is now common ground that the operators of the site at times material to this action have been as follows: from a date prior to 1 ^st January 2005 until 24 ^th December 2006, Alba Proteins Limited ("D1"); from 25 ^th December 2006 until 30 ^th April 2011, Alba Proteins Penrith Limited ("D2"); and from 1 ^st May 2011 to the present, Omega Proteins Limited ("D3"). All three defendants are members of the same group of companies, of which the parent company is Leo Group Limited (" Leo"). For convenience I will refer to them throughout as D1, D2 and D3, even though (as will become apparent) the proceedings were originally commenced against D2 alone.

A paginated bundle was prepared for the purposes of this hearing which contained some but by no means all of the correspondence between the parties. Where I refer in this judgment to page numbers, the reference is to that bundle. I bear in mind the point made on behalf of the defendants that I must be careful not to assume that there is no other relevant correspondence. On the other hand, I also bear in mind that it was open to either party to add further correspondence if it was thought important for me to see it.

Proceedings were commenced on 23 ^rd December 2010, when a claim was issued against D2 alone. There were hearings before Irwin J, in the course of which a Group Litigation Order ("GLO") was made. Subsequently, I became the judge managing the proceedings.

On 26 ^th October 2012 I made an order inter alia in the following terms:

"1. The Claimants have permission to add [D1] and [D3] as First and Third Defendants to these proceedings notwithstanding the provisions of s35(1)(b) of the Limitation Act 1980 and without prejudice to any point which they may choose to take as to limitation. …

10. Any issue which may arise as to limitation should be referred to the management Court by way of a Part 23 application notice. …".

Directions were given as to the amendment of pleadings and as to the time for any application in relation to any issue of limitation. In Amended Group Particulars of Claim dated 31 ^st October 2012, Cs pleaded the successive operation of the site by the three defendants and maintained their claim for damages for nuisance suffered since 1 ^st January 2005. In an Amended Defence dated 14 ^th November 2012 D1 pleaded that any claims against it which are said to have accrued before 14 ^th November 2006 are statute-barred. That date is pleaded because D1 accepts that it is deemed to have been served with the Amended Claim Form on 14 ^th November 2012.

Thus in a nutshell, Cs seek compensation from D1 for nuisance suffered by Cs from 1 ^st January 2005 until D1 ceased to operate the site on 24 ^th December 2006, whilst D1 asserts that any claim accruing against it before 14 ^th November 2006 is statute-barred.

On 19 ^th December 2012 and 25 ^th June 2013 Cs issued the two Part 23 application notices on which I have to rule. By these applications, Cs seek a declaration that their claims which accrued against D1 before 14 ^th November 2006 are not time-barred, and an order that for the purposes of these proceedings D2 is prevented from denying that it was the operator of the site for a period six years prior to the issue of the Claim Form and up to 1 ^st May 2011, and unable to claim that the claims against it are statute-barred.

Each of the application notices is supported by witness statements of Miss Elin Gwen Evans ("Miss Evans"), Cs' solicitor, these being dated 20 ^th December 2012 (p4) and 24 ^th June 2013 (p309) respectively. The essence of her evidence is the assertion at paragraph 11 of her first statement (p6) that Cs "have been positively led to believe from an early stage that the correct defendant was solely" D2.

All three defendants are now represented by Clarke Willmott LLP. The evidence on which they rely is contained in a statement dated 28 ^th February 2013 (p235) by Mr Ian Smith ("Mr Smith"), the in-house solicitor in Leo's legal department.

The course of proceedings will become apparent in more detail as I review the chronology of relevant events, to which I now turn.

On 3 ^rd September 2009, Cs' solicitors wrote to D2 (p49) indicating that they acted for a number of local residents who wished to claim an injunction (if appropriate) and damages "against the operator of the Alba Proteins factory" in connection with the odour problem emanating from that factory. The letter made clear that the allegation of nuisance went back for a number of years, and specifically referred to the limitation period of 6 years. The letter said —

"We believe that the appropriate Defendant is [D2]. Please confirm that this is correct and confirm an address for service".

Thus from the outset it was made clear to D2 that Cs claimed damages for a nuisance which was alleged to have begun some years before D2 became responsible for the site.

There was no reply to that letter. As will become apparent, it is a regrettable feature of the evidence that letters sent by Cs' solicitors have frequently received no reply.

On 9 ^th October 2009 Cs' solicitors wrote in broadly similar terms to D1 (p51). They again asked for confirmation that they were writing to the correct defendant. Again they received no reply.

On 11 ^th November 2009, Cs' solicitors again wrote to D1 (p316), once again in broadly similar terms. They referred to their earlier letter, and asked whether D1 had insurance cover against the likely claims. Again, no one reading this letter could have been in any doubt that the prospective claimants alleged a continuing nuisance by unpleasant odours emanating from the operations carried on at the site since the mid-1990s, and wished to claim damages for such period as the Limitation Act would permit. D1 did not reply to the effect that it had no responsibility for the operation of the site after 23 ^rd December 2006. Indeed, it did not reply at all.

On 4 ^th May 2010 Cs' solicitors wrote to D1 (p53). They referred to previous correspondence which had not been answered. They indicated that when insurance cover had been obtained to support a conditional fee agreement, they would seek a GLO. They urged D1 to instruct solicitors.

On 15 ^th June 2010 Cs' solicitors wrote a letter to Leo as the parent company of D2. A copy of that letter was added to the bundle at my instigation during the hearing, but does not have a page number. They pointed out that all correspondence sent to D2 had thus far gone unanswered, and indicated that they were now in a position to commence proceedings. D2 replied (p55), saying that Cs' allegations had not been substantiated by any evidence and that it did not accept "any liability for unsubstantiated allegations". The letter was silent as to the date when D2 began to operate the site.

On 24 ^th June 2010 Cs made a company search in respect of D2, which showed (p269) that D2 was incorporated on 4 ^th April 2006.

On 2 ^nd September 2010 Cs issued an application against D2 for pre-action disclosure (p71). That application was supported by a statement from Miss Evans dated 15 ^th October 2010 (p73). Paragraph 9 gave details of the number of odour complaints received by EDC in the 10 years between 1997 and 2007. These showed that in the last six years, the greatest number of complaints had been received in 2005 and 2006. Paragraph 11 indicated that Cs were likely to claim "compensation for past nuisance limited to the period of 6 years prior to the date of issue" and possibly also an injunction. Paragraph 19 indicated that the purpose of the application was to obtain material, not so far made available by D2, so that Cs could be properly advised as to the merits of the claim. In paragraph 25 Miss Evans commented that the case was unique in her experience "since in most cases a defendant's legal representatives are only too keen to explain why their clients are not responsible for a nuisance". In paragraph 31 she said –

"There is now an element of urgency about the application since the Claimants are anxious that something should be done about the nuisance but also because the limitation period in respect of one particularly bad year, namely 2005, is approaching".

That statement made it entirely clear that a claim for damages for nuisance allegedly caused in 2005, and thereafter, was an important part of Cs' case. D2 knew that it did not operate the site in 2005, or for most of 2006. D2 knew who was responsible for the operation of the site in those years.

On 20 ^th September 2010 Dyne Solicitors...