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Identity of Defendant ‘Deliberately Concealed’ in Odour Nuisance Case

ChimneyIn the context of an industrial odour nuisance claim, the High Court has found that a proposed defendant to the case was not entitled to assert a limitation defence on the basis that its identity as an operator of a rendering plant during a relevant period had been ‘deliberately concealed’ from the claimants and their lawyers.

In a group action, local residents who were said to have been affected by noxious smells had launched a damages claim in respect of a six-year period commencing in January 2005. The proceedings were issued solely against company B, which had operated the plant between December 2006 and April 2011. Company A, which was part of the same group and had managed the plant until December 2006, was not initially sued and the residents only sought to join it as a defendant in 2012.

Company A argued that the proceedings in respect of all but about one month of the period in which it had operated the plant were statute barred in that more than six years – the relevant limitation period – had passed between that period and the claim form having been served upon it.

In dismissing those arguments and permitting the residents to proceed with their claim against Company A, the High Court found that Company B had made active misrepresentations to the residents’ lawyers that it was the correct and only defendant for the whole of the relevant period of the claim.

From the outset, the residents’ legal team had sought confirmation that they had correctly identified all relevant targets of the proceedings; however Company B had positively led them to believe that it was the only appropriate defendant. In those circumstances, Company B had ‘deliberately concealed an obviously relevant fact from the claimants and from the Court’.