Omya UK Ltd v Andrews Excavations Ltd & Anor

Factual and Procedural Background

The Claimant initiated an action seeking judgment against two Defendants for £765,094.40 plus interest and costs. The Claimant alleged that between late 2016 and February 2017, the First Defendant trespassed on the Claimant's land, specifically a parcel known as Francis Quarry in Cliffe, Kent, and deposited 19,435 tons of waste. The Second Defendant was sued as an alleged joint tortfeasor with the First Defendant. The dumped waste consisted of odorous processed household and commercial waste, including trommel fines. While the parties agreed that the tipping occurred and the quantum of damages was undisputed, liability was contested.

The trial included a site visit to two related sites: Francis Quarry, a former chalk quarry now vegetated, and Thameside Terminal, previously an oil terminal and later used by companies associated with the Second Defendant. The boundary between these sites included a large vegetated bund ("boundary bund"). The Claimant alleged that access to Francis Quarry was gained by cutting a corridor through this bund from Thameside Terminal. The Defendants initially denied this but later conceded that the waste was brought through Thameside Terminal via such a corridor.

The trial involved extensive photographic evidence and witness testimony, including from employees of the Claimant, the Second Defendant, and experts in civil engineering and geology. The Defendants contested the reliability of key witnesses and the characterization of events, particularly the nature of activities at Thameside Terminal during the relevant period.

Legal Issues Presented

1. Whether the First Defendant is liable for trespass and unlawful tipping of waste on the Claimant's land.
2. Whether the Second Defendant is liable as a joint tortfeasor alongside the First Defendant.
3. The extent to which the Second Defendant's personal involvement or control over the First Defendant's actions establishes joint tortfeasor liability.

Arguments of the Parties

Claimant's Arguments

• The First Defendant trespassed and deposited a large volume of waste on the Claimant's land via a corridor cut through the boundary bund from Thameside Terminal.
• The Second Defendant, as a controlling figure in the companies involved, is liable as a joint tortfeasor due to his active participation beyond mere constitutional control.
• Photographic and witness evidence demonstrate organized, large-scale illegal tipping and subsequent covering up of the waste.
• Previous unlawful activities by the Second Defendant on Thameside Terminal indicate a disregard for environmental and planning regulations, supporting liability.

Defendants' Arguments

• Initially denied access via Thameside Terminal, suggesting alternative access routes existed; later conceded access was through Thameside Terminal but denied responsibility for the tipping.
• The Second Defendant asserted that Thameside Terminal was dormant except for permitted works (construction of a "New Bund") on 7 February 2017, denying involvement in the waste dumping.
• Challenged the honesty and reliability of key Claimant witnesses, particularly alleging dishonesty by one employee.
• Argued that the Second Defendant’s role was limited to constitutional control of the company and did not extend to active involvement in the trespass, thus denying joint tortfeasor liability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Koninklijke Philips Electronics NV v Princo Digital Disc GmbH [2003] EWHC 2588 (Pat)	Principles on joint tortfeasor liability and director’s personal liability beyond constitutional control.	Used to guide assessment of whether the Second Defendant, as a director, could be held liable as joint tortfeasor.
MCA Records v Charly Records [2001] EWCA Civ 1441	Clarification on when a director is liable as joint tortfeasor, particularly requiring active involvement beyond board governance.	Applied to evaluate the Second Defendant’s involvement and control in the wrongful acts.
CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013	Liability as joint tortfeasor may arise where an individual "intends and procures and shares a common design" for the infringement.	Referenced in considering the Second Defendant’s potential joint liability via shared intent and procurement.
Unilever Plc v Gillette (UK) Limited [1989] RPC 583	Principles related to joint tortfeasor liability and shared design in infringement cases.	Supported the legal framework for joint tortfeasor liability analysis.

Court's Reasoning and Analysis

The court began by identifying undisputed facts: a large volume of waste (19,435 tons) was dumped over several months (November 2016 to February 2017) on the Claimant’s land, accessed via a corridor cut through the boundary bund from Thameside Terminal. The scale of the operation indicated a significant engineering effort requiring suitable equipment and vehicles, resources controlled by the Defendants.

The court evaluated witness evidence, notably from two key Claimant witnesses whose honesty and reliability were affirmed. The First Defendant’s vehicles and employees were observed actively involved in the tipping. The Second Defendant’s evidence, which sought to portray the site as dormant and deny involvement, was found fundamentally inconsistent with credible witness accounts and contemporaneous photographic evidence.

The court rejected the Defendants’ alternative explanations, accepting that the corridor was created, used for tipping, and then carefully filled in, all indicating deliberate and organized activity attributable to the Defendants.

Regarding the Second Defendant's liability, the court applied established legal principles on joint tortfeasor liability. It found that the Second Defendant exercised direct control over the company’s operations and was personally involved in instructing the activities on site, going beyond mere constitutional governance. This active involvement satisfied the criteria for joint tortfeasor liability.

Holding and Implications

The court held that both Defendants are liable to the Claimant for trespass and the unlawful tipping of waste on the Claimant’s land. Judgment was entered in favor of the Claimant for the agreed sum of £765,094.40.

The decision directly affects the parties by imposing liability and financial judgment on both Defendants. It confirms that personal involvement and control in wrongful acts by a company director can establish joint tortfeasor liability. However, the opinion does not establish new precedent beyond applying existing principles to the facts of this case.