Alame and Others Claimants KB-2023-000252 “Bille Individuals” v Shell Plc (formerly known as Royal Dutch Shell Plc)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May DBE |
| Judgment Date | 08 March 2024 |
| Neutral Citation | [2024] EWHC 510 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-000252 Case No: KB-2023-002200 Case No: KB-2023-002201 Case No: KB-2023-000437 |
[2024] EWHC 510 (KB)
Mrs Justice May DBE
Case No: KB-2023-000252
Case No: KB-2022-005017
Case No: KB-2023-002200
Case No: KB-2023-002201
Case No: KB-2023-000437
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
THE “BILLE AND OGALE GROUP LITIGATION”
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer KC, Edward Craven, Alistair Mackenzie, Kate Boakes, George Molyneaux (instructed by Leigh Day) for the Claimants
Lord Peter Goldsmith KC, Shaheed Fatima KC, Dr Conway Blake and Tom Cornell (instructed by Debevoise & Plimpton LLP) for the Defendants
Hearing dates: 12 th – 14 th December 2023
Introduction
These are group actions against Shell involving claims arising from oil pollution in the Niger Delta. There was a further CMC hearing over three days in December 2023, listed to deal specifically with matters of case management and disclosure following on from my judgment on issues raised at a 5-day CMC in July 2023. This judgment should be read with my judgment from the July CMC at [2023] EWHC 2961 (“the November judgment”). The abbreviations adopted in the November judgment are continued here.
Three statements were filed for the purposes of the December hearing: for the Claimants there was the sixth statement of Ms Modi, dated 29 November 2023 (“Modi 6”) and the eighth statement of Mr Renshaw dated 1 December 2023 (“Renshaw 8”); for the Defendants I received the eighth statement of Mr Boyne dated 8 December 2023 (“Boyne 8”).
Case management and “global claims”
It is obvious that this litigation must progress, in some form. The usual course in group litigation such as this is to identify “lead” claimants and to progress from there. However in this case, for the reasons I gave in my November judgment, the current lack of pleaded detail on causation precludes any sensible identification of lead individuals at this stage. On the present state of the pleaded case, the necessary causal link between event(s) and breach and breach and loss has not been identified. In that judgment I concluded as follows, at [45]
“For now, therefore, I do not see any practical alternative but to view the cases of all bar the 5 Bille claimants as global claims unless or until a more particular case is identified…”
Much of the December CMC was taken up with argument as to the case management implications of this conclusion. Mr Hermer KC, for the Claimants, sought clarification of what I meant, in particular to identify whether my “global claim” conclusion was descriptive of the current state of the pleaded case, or prescriptive as to the test for causation that the court would be applying at any trial. Lord Goldsmith KC submitted that my judgment needed no clarification. He suggested that I had made a final determination that these are global claims, and that, as such, I should shape the course of the litigation by focussing on Shell's case that significant amounts of pollution in both Bille and Ogale were caused by third party and other activity for which Shell could not be held responsible.
I consider that my November judgment was clear: the pleaded case precludes case management of this litigation being organised by reference to the selection of lead claimants. A different way forward must accordingly be found. That is not to say that a lead claimant approach may not become possible in future, if and when appropriate amendments are sought and allowed, but in my view the only way to progress at present is by treating the Claimants' case as an “all-or-nothing” claim and proceeding accordingly. To that extent only I accept Lord Goldsmith's submissions and reject Mr Hermer's suggestion that my November judgment was descriptive only. I do not accept Mr Hermer's suggestion that the result of the July CMC is to be seen as a staging post to an events-based claim, with the consequence that disclosure is to be directed towards permitting the Claimants to identify what specific events have caused their loss and what specific acts or omissions on the part of the Defendants can be linked to such events. I deal with this further in relation to disclosure, below.
The way forward
Trial of Preliminary Issues
Fortunately, by the time of the most recent hearing there was a substantial measure of agreement between the parties as to how the case should move forward. The first area of agreement is that the Bille claims are to be addressed first, separately from the Ogale claims. The hearing accordingly focused on the Bille claims, arguments as to case management and disclosure were confined to those. I say no more about the Ogale claims in this judgment.
There was also agreement as to at least the first stage of the court's decision-making process in relation to the Bille claims. The first hearing, to be listed over 3 weeks in January-February 2025, will be a preliminary issues trial (“the PI trial”). That trial, involving amongst other things expert evidence of Nigerian law, is intended to determine principles of Nigerian law and statutory construction affecting these claims.
During the course of completing this judgment, the court was notified that the parties have agreed a list of 22 issues to be determined at the PI trial. However, there is disagreement as to the inclusion of two further issues as follows: first, whether the concept of a “global claim” is a matter of procedural or substantive law; second, if substantive, whether Nigerian law recognises and applies the concept of a global claim as it is understood in English law, i.e., that a claimant is bound to recover nothing if it is established that a factor for which a defendant is not liable made a significant contribution to the damage (the precise wording is paraphrased). I have received several pages of written submissions from both sides arguing for and against the inclusion of these issues.
Having considered the written submissions carefully, I see the force of Lord Goldsmith KC and Ms Fatima KC's arguments that a global claim is a pleading point and thus a procedural one, governed by English law. Yet I am reluctant finally to decide such an important matter without the benefit of full oral argument and reference to authority. In any event, as causation itself is indisputably governed by Nigerian law, it seems to me that the consequences of a decision on global claims, even if the decision to apply the concept is procedural and a matter of English law, will need to be examined through the prism of Nigerian law. The matter of how causation is to be decided and what principles are to be applied is key to this case. The global claim approach, if it applies, may well be determinative; the Defendants certainly appear to think so, hence their determination to pursue the advantage.
With that in mind, I have concluded that it is appropriate to include issues 16 and 17 in the list of issues for determination at the PI trial. Neither is going to add significantly to the time required (although looking at the long list of other issues I do wonder if 3 weeks is going to be long enough to hear all the necessary evidence and argument). Moreover, as the proper approach to causation may well be determinative of many of these claims it makes sense to argue it fully at as early a stage in the litigation as possible. There appears to be a great deal of overlap between issues 15 and 17 in any event.
A “factual trial” to follow
As any decisions made at the PI trial are unlikely to be wholly dispositive of any claims (though they may well affect the approach to them) there will necessarily be a further trial or trials after that. The issue for the court at the December hearing was how to progress matters efficiently and sensibly so as to be ready for a factual trial that is to follow after the PI trial has concluded. Neither party was suggesting that nothing be done beyond preparing for the PI trial, both sides recognised that they need to be preparing, in tandem with getting ready for the PI trial, for what is to come beyond that. Disclosure is a key part of that preparation.
In planning now for what is to come after the PI trial, and in considering disclosure (see below) I bear in mind the following: the Claimants have chosen to start group litigation by pleading multiple as-yet incompletely identified events of pollution, from different locations (also incompletely identified) and by a number of different mechanisms within a 500sq kilometre area of the Niger Delta over a three year time period. This is not a case where the litigation turns on events which have been identified from the start (as in the Bodo litigation, which involved 2 identified events causing loss) or a single mechanism of pollution (as in the Vedanta case, where by-product from mining operations over a period was the single cause of pollution in the area). The pleadings in this case do not permit the court or the parties to link a Claimant's (or set of Claimants') loss to an event(s) of pollution, nor the event(s) to breach by the Defendants. Various failures on the part of SPDC in maintaining or protecting its pipeline and other infrastructure in Bille in the relevant period have been pleaded, but only in general terms. Since the law to be applied in evaluating liability is different depending on the precise polluting event, a general pleading of what...
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