Chief Isaac Osaro Agbara v The Shell Petroleum Development Company of Nigeria Ltd
| Jurisdiction | England & Wales |
| Judge | Jason Coppel |
| Judgment Date | 05 December 2019 |
| Neutral Citation | [2019] EWHC 3340 (QB) |
| Date | 05 December 2019 |
| Docket Number | Case No: FJ 31/19 & IHQ19/0293 |
| Court | Queen's Bench Division |
[2019] EWHC 3340 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Case No: FJ 31/19 & IHQ19/0293
Jacqueline Perry QC (instructed by Johnson & Steller) for the Claimants
Antony White QC (instructed by Reed Smith) for the Defendants
Hearing dates: 5–6 November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Jason Coppel QC (sitting as a Deputy High Court Judge):
The application
This is an application by the Defendants, whom I shall refer to compendiously as “Shell”, to set aside the registration of a judgment of the Federal Court of Nigeria dated 14 June 2010 by which the Claimants were awarded 15,407,777,246 Naira in damages in respect of the pollution of land occupied by them following the rupture of a pipeline maintained by Shell in 1969 or 1970 (“ the judgment”). Before the addition of any interest, the judgment has a value at today's exchange rate of approximately £33m.
The judgment was registered by order of Master Eastman dated 25 February 2019 following an ex parte procedure pursuant to s. 9 of the Administration of Justice Act 1920 (“ AJA”). The amount of the judgment registered was based on a calculation by the Claimants which included the addition of compound interest, and was 182,768,696,651.89 Naira (approximately £393m at today's exchange rate). The effect of registration is that the judgment in this amount may be enforced as if it were a judgment of the High Court (s. 9(3) AJA). Shell is entitled to apply to set aside registration (see s. 9(4)(b) AJA, CPR 74.7 and §3 of Master Eastman's Order) and such an application is to be treated as a fresh and full hearing as to whether the conditions for registration set out in s. 9 AJA are satisfied ( Tenaga Nasional Bhd v Frazer-Nash Research Ltd [2019] 1 WLR 946, §31).
Section 9 AJA provides, so far as material:
“(1) Where a judgment has been obtained in a superior court in any part of His Majesty's dominions outside the United Kingdom to which this Part of this Act extends, the judgment creditor may apply to the High Court of England … at any time within 12 months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case they think it just and convenient that the judgment should be enforced in the United Kingdom, and subject to the provisions of this section, order the judgment to be registered accordingly.
(2) No judgment shall be ordered to be registered under this section if —
(a) the original court acted without jurisdiction; or
(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or
(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or
(d) the judgment was obtained by fraud; or
(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or
(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.”
It is common ground that Nigeria is one of the former dominions to which the s. 9 AJA procedure applies and also that registration should not be set aside on the grounds that it is time-barred, pursuant to s. 9(1), even though applications to register should normally be made within one year of the judgment at issue and the application in this case, on 18 February 2019, was made more than 8 years after the date of the judgment. Shell did not take objection on that ground, no doubt because the application for registration followed shortly after a ruling of the Nigerian Supreme Court, of 11 January 2019, dismissing Shell's appeal in respect of the judgment. I therefore extend time for the application pursuant to s. 9(1).
Shell argues that the registration of the judgment should be set aside for two reasons. It argues:
(1) That s. 9(2)(e) AJA prohibits registration because it has an appeal pending before the Supreme Court of Nigeria (“ the Supreme Court”).
(2) That it is not “ just and convenient” for the judgment to be enforced in the UK because it suffered a substantial breach of natural justice during the proceedings in Nigeria which led to the judgment.
Shell also argues that the quantum of the judgment registered is excessive having regard to (a) the inclusion of 10m Naira in punitive damages which ought not to be enforced in the UK, (b) significant calculation errors by the Claimants and (c) the unwarranted addition of compound as opposed to simple interest on the judgment sum. If Shell's complaint as to quantum is the only complaint made out, it submits that the judgment should remain registered but that Master Eastman's statement of the value of the judgment (§2 of his Order), reflecting the value stated in the application for registration, should be varied so as to state a lower amount.
I shall consider these grounds in turn, after setting out the relevant factual background to the application.
Factual background
The proceedings which led to the judgment have been long and complex and it is not necessary for the purposes of the application to understand each and every turn of events. This account is confined, therefore, to the material facts.
The proceedings were commenced by a claim issued in the Federal Court of Nigeria in 2001, following two earlier claims in respect of the same events. The first of those earlier claims was settled and the second was initially successful following a contested trial but then judgment was set aside on account of lack of jurisdiction of the Court which had determined the claim in favour of the Claimants. In the 2001 claim, the Claimants, who are representatives of the Ejama-Ebubu community, complained that “ a major crude oil blow-out and spill involving over 2,000,000 barrels of oil had occurred from the defendant's oil installations and facilities in Ejamah in Ebubu-Eleme which flooded the Ochani stream and permeated the soil of the [Claimants] to a point of saturation” (Statement of Claim, §11) and that Shell had subsequently failed to clear up the spill. They alleged that the surface and ground water of their area had been rendered unfit for human consumption (Statement of Claim, §17(c)). They sought approximately 1.7bn Naira in special damages, interest on that sum and also 10bn Naira “ in Punitive General Damages .. for General Inconvenience, acid rain, pollution of underground water and hardship to the population who have been deprived of the right to self sustenance, education and good life” (Prayer to the Statement of Claim). They also sought an order compelling Shell to reinstate their land.
Shell filed a Defence disputing responsibility for the oil spill and claiming that it had already made substantial progress in clearing up the effects of the spill. Shell submits, and I accept, that it was ready and willing to defend the claim. However, it is also clear that Shell conducted its defence in such a way as to convince the Federal Court that its intention was to frustrate the determination of the claim. I have not been informed of the precise reasons for delay in the proceedings up to 2007, save that there were changes of Judge and a number of adjournments at the instance of Shell. On 2 August 2007, Buba J rejected an application for adjournment by Shell of the date for filing of written arguments, on account of unavailability of its Counsel. He noted that Counsel's firm was comprised of 27 Counsel (the point being that alternative representation could have been arranged) and referred in disparaging terms to Shell's “ antics”. He adjourned the hearing of the claim to 2 October 2007, ordering that it be heard thereafter “ day to day as the business of the Court shall permit”.
On 24 September 2007, Shell's Counsel wrote to the Court requesting an adjournment of the 2 October hearing date on account of unavailability of its Counsel. It would appear that Shell had not turned up to Court on 2 August to hear the Judge's ruling and had been trying unsuccessfully to obtain a transcript of what had occurred on that day. It was undoubtedly aware that a hearing had been listed for 2 October (hence the letter of 24 September) although it is not entirely clear that it knew that the trial was to begin on that day. It must, however, have known that its further application for adjournment was not guaranteed to succeed. Nevertheless, it chose to attend the hearing on 2 October without...
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