Biscuit company loses overhead lines lawsuit

ASSOCIATED Brands Industries Ltd (ABIL) has been ordered to pay TSTT’s costs for an application that the telecommunications company filed to have set aside a claim for compensation for the destruction to insulated trucks by low-hanging overhead lines in 2015.

In a recent decision, Justice Ricky Rahim set aside a claim ABIL filed against TSTT for negligence and its original claim against TTEC.

Associated Brands originally filed its negligence claim against T&TEC, but when the commission filed its defence, it admitted the offending lightpole belonged to it, but not the overhead lines.

Associated Brands was granted an order to substitute TSTT in place of TTEC. After it filed its amended claim and statement of case, and servedit on TSTT, the telecommunications company applied to have the order for it to be sued set aside because it was statute-barred.

The company said it sought disclosure from T&TEC on the ownership of the lines, but because of covid19 restrictions, communication was slow and it could not confirm who owned the lines, although the commission suggested it was either TSTT or a local cable company, which both had lines on the pole.

In its setting-aside application, TSTT argued that the claim was filed seven months after the limitation period expired, and the law does not provide for an extension for tortious property damage.

Rahim said it was not in dispute that by the time ABIL filed its application to substitute, the period of limitation had expired.

But, he said, “However, to simply state the obvious would be equally to ignore the fact that a party cannot file an application if it is impossible so to do through no fault on that party’s part. In that regard it is well known that the covid19 pandemic was declared in March 2020 and filings were suspended ultimately until the introduction of electronic filing with effect from June 16, 2020. The application to substitute was made immediately on the said date of the resumption of filing.”

He said given the extraordinary circumstances, the application was made promptly. He also pointed out that it was only when T&TEC filed its defence in February 2020 that it was disclosed that the lines belonged to TSTT.

“It follows that the claimant could not have known, even in the face of the exercise of reasonable diligence, that T&TEC was not a proper party to the claim until the filing of the defence on February 14, 2020.

“Even then, the position was simply that T&TEC had said so but there was, on the evidence presented to this court on the application, nothing before the claimant to confirm that TSTT was the proper party so that TSTT could be immediately joined. It is in that context that discussions ensued between the claimant and TTEC.”

However, he said on the evidence T&TEC bore no liability which could have been passed on to a new party, and since the law did not permit the joinder to go back to the date the claim was originally filed, it was clearly outside the limitation period.

“The unfortunate reality of the claim is that the claimant sued the wrong entity and despite the exercise of reasonable diligence was unable to discover the identity of the proper party until well after the expiration of the limitation period in circumstances where its claim is not one of those for which the limitation period is reckoned from the date of discovery of the proper party…

“The legislature would have in their wisdom prescribed specific circumstances in which such reckoning would be permitted, and it is not for this court to bypass same and widen the category set by the legislature.”

He also said there was no application before him to disapply the limitation period set for bringing the claim under the Limitation of Certain Actions Act or the recently passed Miscellaneous Amendments Act No.10 of 2020, which allowed for the extension of time for filing matters owing to the pandemic.

TSTT was represented by attorneys Keston McQuilkin and Nalini Jagnarine.