La Brea Environs Protectors v The Petroleum Company of Trinidad and Tobago (Petrotrin) and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kitchin |
| Judgment Date | 23 May 2022 |
| Neutral Citation | [2022] UKPC 22 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0092 of 2019 |
[2022] UKPC 22
Lord Reed
Lord Briggs
Lord Kitchin
Lord Hamblen
Lord Burrows
Privy Council Appeal No 0092 of 2019
Privy Council
Appellant
Elton Prescott SC
Farai Hove Masaisai
(Instructed by Hove & Associates (Trinidad))
1 st Respondent (The Petroleum Company of Trinidad and Tobago)
Gilbert Peterson SC
Amirah Rahaman
(Instructed by Kennedys Law LLP (London))
2 nd Respondent (Occupational Safety and Health Agency (OSHA))
Ravindra Nanga
(Instructed by Pollonais Blanc De La Bastide & Jacelon (Port of Spain))
This appeal concerns the jurisdiction of the court in relation to representative proceedings and, in particular, when managing proceedings in which a number of persons have an interest, to appoint one or more persons, or a body having a sufficient interest in the proceedings, to represent some or all other persons with the same or a similar interest.
La Brea is a rural village in southern Trinidad. For many years prior to the events giving rise to these proceedings, families with their homes in that village relied for their livelihoods on activities such as fishing, crab catching and conch harvesting. In midDecember 2013 a number of residents of La Brea woke up to find a strong smell of gas in the air. They gathered together to investigate the source of that smell and, as they did so, they were alerted to the presence of oil along a local beach. It is said that these residents then found extensive oil pollution along this and other beaches and in nearby mangrove wetlands, and that the pollution worsened and spread across a wider area over a number of days. The fumes associated with the pollution were nauseating and many of the residents began to suffer from headaches and vomiting. Children were kept indoors and adults were fearful of using their gas stoves. It is also said that the pollution has had a seriously harmful impact on the wellbeing and the livelihoods of the residents of this area.
The appellant, La Brea Environ Protectors (“LBEP”), was formed as a non-profit organisation in January 2014 and was incorporated in May 2014. It is claimed that all of the members of LBEP were residents of La Brea and were adversely affected by the oil pollution. It is also contended that the pollution is the result of oil spills which took place from the pipelines of the first respondent, The Petroleum Company of Trinidad and Tobago (“Petrotrin”). It is common ground that, at the time, Petrotrin was the largest locally owned oil and gas company in the Republic of Trinidad and Tobago and engaged in operations including oil exploration, the production of hydrocarbons and making and selling a wide range of petroleum products.
In August 2014 LBEP began these proceedings against Petrotrin, as the first defendant, and against the Occupational Safety and Health Agency (“the OSH Agency”), as the second defendant. LBEP, purporting to act on behalf of its members listed in a schedule to the statement of case, asserts that Petrotrin is responsible for the pollution which was caused by oil spills from its pipelines from around the middle of December 2013 to the end of that month; that Petrotrin is guilty of a long list of failures and, among other things, neglected properly to maintain the pipelines; failed to adopt appropriate measures to prevent oil spills of the kind which occurred; and failed to take appropriate steps to clear up the spills and minimise their impact on the environment and the local population. It is claimed that Petrotrin has in this way committed an actionable nuisance and a breach of the duty of care which it owed to the local residents, including LBEP's members, and is liable, among other things, for the extensive loss and damage those members have suffered.
LBEP also claims that the OSH Agency, as an enforcing body, owed a duty of care to LBEP's members to ensure that Petrotrin complied with the duties imposed on it by the Occupational Safety and Health Act (“the OSH Act”) and the policies, standards and codes developed under it, but negligently failed to ensure that it did so and that LBEP's members have suffered loss and damage for this reason too.
In October 2014 and again in April 2015, LBEP amended its claim form and statement of case, but has at all times maintained that it is pursuing the claim on behalf of its members. Petrotrin has responded by disputing that it ever owed LBEP a duty of care, denying the allegations of negligence and nuisance and putting LBEP and its members to strict proof of any losses. For its part, the OSH Agency has denied that it ever owed any duty of care to LBEP or that it was negligent.
There matters rested until, in May 2018, LBEP made a formal application that it be appointed as a representative claimant for all of the 101 members now listed in the amended statement of case; or that each and every one of those 101 members be added to the claim in substitution for, or in addition to, LBEP. The application has been supported by an affidavit of Ms Oneca Branker-Showers, a director of LBEP, in which she has given evidence of the way the oil spill came to the attention of the residents of La Brea, and explains that LBEP was incorporated to create one voice for all the residents affected by the spill and that, in her view, all of the members have the same interest in these proceedings and it is one which LBEP was and remains capable of representing.
This application was heard by Quinlan-Williams J on 17 July 2018 and was dismissed for reasons which she gave in a short judgment in writing on 4 February 2019. The judge refused to allow LBEP to represent all of its members for essentially two reasons: first, LBEP did not itself have any proper interest in the proceedings; secondly and in any event, LBEP certainly did not have the same or a similar interest as those persons whom it sought to represent. The judge did not deal expressly with the alternative relief sought by LBEP, namely that all of its members be added as claimants in addition to or in substitution for LBEP.
LBEP and its members were disappointed by that outcome and, on 24 July 2018, LBEP filed a notice of appeal against it. The appeal came on for hearing before the Court of Appeal (The Hon I Archie CJ, and The Hon C Pemberton JA) on 4 February 2019. The appeal was dismissed for reasons which the Court of Appeal indicated it had explained sufficiently in the course of argument, and which, as appears from the transcript, were essentially the same as those given by the judge, namely that LBEP had not itself been affected adversely by the oil spills; and further and in any event, LBEP did not have the same or a similar interest as the members it was purporting to represent. Nor, it seems, was the court persuaded it was appropriate to add the members of LBEP to the claim as individual parties in addition to or substitution for LBEP.
On or about 3 May 2019 LBEP made a further application to have five of its members added to the claim as claimants and for an order that they be appointed to represent all of the other members. The Board has been informed that this further application has not yet been dealt with, and that the judge before whom it is due to be heard is awaiting the outcome of this appeal before giving further directions in relation to it.
Accordingly, upon this further appeal, pursued with the permission of the Board given on 10 March 2020, LBEP maintains that the Court of Appeal perpetuated the errors of the judge and that it does indeed have a sufficient interest in the proceedings to represent its members, for they are persons with the same or a similar interest as required by the relevant procedural rules, and particularly so if proper regard is had to the overriding objective that matters are dealt with justly and expeditiously. LBEP also contends that the judge and the Court of Appeal failed properly to address the alternative application before the court, namely that the 101 members of LBEP be added to the claim as additional parties in addition to or in substitution for LBEP itself.
The Board will address the arguments advanced on behalf of the parties in a moment. But before doing so, it is necessary to outline the relevant procedural rules in the Republic of Trinidad and Tobago concerning the addition and substitution of parties after proceedings have been commenced, and the power to appoint a person or a body having a sufficient interest in the proceedings to represent all or some of the persons with the same or a similar interest.
The addition and substitution of parties after the commencement of proceedings is dealt with in Part 19 of the Consolidated Civil Proceedings Rules 2016 (“the CPR”). In particular, rule 19.2(3) confers on the court a discretionary power to add a new party to proceedings if (a) it is desirable to add the new party so that the court can resolve all matters in dispute in the proceedings; or (b) there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.
Rule 19.2(5) is concerned with the substitution of one party for another, as opposed to the simple addition of another party to the proceedings, and it confers on the court a power to order a new party to be substituted for an existing one if (a) the existing party's interest or liability has passed to the new party; and (b) the court can resolve the matters in dispute more effectively by substituting the new party for the existing party.
Rule 19.2(7) emphasises the need to make any application with reasonable...
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