Parkin & Ors v Alba Proteins Ltd & Ors

Deliberate concealment may arise through active misrepresentation and sustained non-disclosure of a fact relevant to the claimant’s right of action. Under section 32(1)(b) of the Limitation Act 1980, time is postponed until the claimant discovered, or could with reasonable diligence have discovered, that fact. Knowledge that a company had previously been involved in operating premises is not necessarily knowledge that it was the correct defendant for a particular period.

Estoppel cannot create a cause of action against a party which had no legal relationship with the claimant, or which did not exist during the relevant period. Under CPR 19.5, a claim may be continued against a substituted or added defendant where the original claim cannot properly be maintained against the existing party, or where the claimant made a mistake as to the defendant’s name.

The claimants sought damages and an injunction for continuing odour nuisance arising from rendering operations at the Wildriggs site. Proceedings were issued against Alba Proteins Penrith Ltd alone, although the site had previously been operated by Alba Proteins Ltd and was later operated by Omega Proteins Ltd.

After Alba Proteins Penrith Ltd eventually disclosed that Alba Proteins Ltd had operated the site during part of the claimed period, Alba Proteins Ltd was added as a defendant. It relied on limitation. The claimants sought relief based on estoppel, deliberate concealment under section 32(1)(b) of the Limitation Act 1980, and CPR 19.5. The central issues were whether the limitation period had been postponed and whether the claim against Alba Proteins Ltd was deemed to have commenced with the original proceedings.

1. Estoppel. The claimants’ estoppel argument failed. Estoppel is ordinarily a shield, not a sword. It could not create a cause of action against Alba Proteins Penrith Ltd for nuisance during a period when it had no responsibility for the site and did not exist for most of that period. The Henrik Sif [1982] 1 Lloyd's Rep 456 did not support such a conclusion.
2. Deliberate concealment. Concealment under section 32(1)(b) of the Limitation Act 1980 may take the form of non-disclosure as well as active concealment, and may be carried out by an agent. The court found that Alba Proteins Penrith Ltd’s correspondence and conduct positively led the claimants to believe that it was the only appropriate defendant. Its failure to identify Alba Proteins Ltd, despite repeated opportunities and knowledge of the true position, amounted to deliberate concealment of a fact relevant to the claimants’ right of action.
3. The concealment was undertaken for the benefit of, and as agent for, Alba Proteins Ltd. Applying section 32(1)(b), the limitation period therefore did not begin until the claimants discovered, or could with reasonable diligence have discovered, that Alba Proteins Ltd was the appropriate defendant. The earliest such date was receipt of the Generic Defence in July 2012. The claim against Alba Proteins Ltd was consequently not statute-barred.
4. Amendment. CPR 19.5(3)(b) applied because the claim for nuisance during 2005 and 2006 could not be continued against an existing defendant unless Alba Proteins Ltd was added. Alternatively, CPR 19.5(3)(a) applied because the claimants had made a mistake as to the name of the appropriate defendant. The amendment was therefore deemed to take effect from the date of the original claim.
5. The court exercised its discretion to permit the amendment. Although amendments depriving a defendant of a limitation defence should not be made lightly, permitting the claim to proceed was consistent with the overriding objective, particularly in light of the deliberate concealment. The claimants succeeded on both concealment and amendment, and were entitled to a declaration that their claim against Alba Proteins Ltd was not statute-barred. Costs were reserved for later consideration.