Omya UK Limited v Andrews Excavations Limited & Anor.

A company director may be liable jointly with the company for a tort where the director’s participation or involvement goes beyond exercising constitutional control. Liability is established where the individual personally participates in, directs, or shares a common design to commit the tort. The court may infer that involvement from the individual’s close operational control, specific instructions to employees, and responsibility for the relevant activity. Mere directorship or general control is insufficient. On the evidence, the director was personally involved in organising and carrying out the trespass and was therefore jointly liable with the company.

The claimant sought £765,094.40 from a company and its sole director for trespass arising from the dumping of approximately 19,345 tons of waste on the claimant’s land at Francis Quarry, Kent. The company’s liability was disputed, as was the director’s alleged liability as a joint tortfeasor.

By trial, it was accepted that the waste had been brought through the neighbouring Thameside Terminal and across a corridor cut through a boundary bund. The principal issues were whether the company was responsible for the dumping and whether the director’s involvement satisfied the legal test for personal liability as a joint tortfeasor.

1. Liability of the company. The undisputed scale of the operation, the use of approximately 1,000 lorry movements, the creation and later closure of the corridor, and the use of the company’s lorries and equipment established that the dumping was carried out by the First Defendant. The court accepted the evidence of Mr Mortley and Mr Dhillon and rejected the Second Defendant’s account that the activity concerned construction of a new bund.
2. Joint tortfeasor test. The court accepted the central significance of the principles relied upon by the parties, including the guidance in MCA Records v Charly Records [2001] EWCA Civ 1441 and the common-design principle stated in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013. A director is not liable merely because of the office held or because the director exercises constitutional control. Personal liability may arise where the director participates or is involved in the wrongful acts beyond that constitutional role, including by intending, procuring and sharing a common design that the tort be committed.
3. Application. The Second Defendant was the sole director, controlled the company’s operations, gave specific instructions to the site team, and accepted that employees acted under his instructions. The court inferred that the same personal instructions extended to the dumping operation and the opening and closure of the corridor. His involvement therefore went beyond constitutional control and established liability as a joint tortfeasor.
4. Disposition. Both Defendants were liable for the trespass. Judgment was entered for the claimant in the agreed sum of £765,094.40. Ancillary matters, including interest and costs, were reserved for further submissions.

First-instance decision. The judgment does not state any prior appellate history.