Harrison Jalla and Abel Chujor v Shell International Trading and Shipping Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Green,Lord Justice Lewison |
| Judgment Date | 29 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1389 |
| Docket Number | Case No: A1/2020/1490 |
| Court | Court of Appeal (Civil Division) |
Appeal (2): Representative Action
[2021] EWCA Civ 1389
Lord Justice Lewison
Lord Justice Coulson
and
Lord Justice Green
Case No: A1/2020/1490
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT
Mr Justice Stuart-Smith
Royal Courts of Justice
Strand, London, WC2A 2LL
Graham Dunning QC, Mr Stuart Cribb and Mr Wei Jian Chan (instructed by Rosenblatt Ltd) for the Appellants
Lord Goldsmith QC and Dr Conway Blake (instructed by Debevoise and Plimpton) for the Respondents
Hearing dates: 7 & 8 July 2021
Approved Judgment
INTRODUCTION
The primary issue that arises on this appeal is whether the claims of over 28,000 individuals and communities for ‘remediation relief’ against the respondents can be pursued by two named individuals by way of a representative action under CPR 19.6(1). Until that part of the claim form was struck out by the judge, the claim was said to be advanced by the two appellants, Harrison Jalla and Abel Chujor, “for themselves and on behalf of the Bonga Community”. The Bonga Community was subsequently said to comprise 27,830 individuals and 457 communities in the area of Nigeria affected by the December 2011 oil spill. I shall call them collectively “the represented parties”. In a judgment dated 14 August 2020, at [2020] EWHC 2211 (TCC), Stuart-Smith J (as he then was) (“the judge”) concluded that, for a variety of reasons, these proceedings could not be pursued by the two appellants as a representative action. Accordingly, he struck out the representative element of the proceedings, leaving just the two appellants' claims in this action. They now appeal against that decision.
I address the issues that arise on appeal in this way. In Section 2, I summarise the factual background. That is no more than a summary, because the factual background to this case has been set out in detail, not only in the judge's judgment referred to above, but also in his earlier judgment on limitation issues ( [2020] EWHC 459 (TCC)), and in my judgment in this court dismissing the appeal on the limitation issues at [2021] EWCA Civ 63.
In Section 3, I address the procedural background by reference to four particular elements: the claims as originally pleaded; the limitation difficulties; the alleged representative nature of the action; and the so-called “refinement” of the pleaded claims during the argument before the judge. I then set out the relevant parts of the judge's judgment in Section 4 and, in Section 5, I identify the two specific grounds of appeal now relied on by way of challenge to that judgment.
I set out the relevant law in Section 6 below, at the end of which I summarise what I consider to be the applicable principles. In Section 7, I endeavour to stand back and consider what a representative action is designed to achieve, and whether those aims are capable of being achieved in the present case. Thereafter, I deal with the two specific grounds of appeal: Section 8 considers whether the appellants are right to say that this case is “materially indistinguishable” from the decision of this court in Lloyd v Google [2020] QB 747; and Section 9 considers whether the judge erred in holding that the appellants and the represented parties “did not have the same interest in the claim, because each represented individual or community claimant would need to prove that he, she or it had individually suffered loss and damage” as a result of the December 2011 oil spill. There is a short summary of my conclusions in Section 10.
THE FACTUAL BACKGROUND
The two appellants are both occupiers of land on or inland from a stretch of Nigerian coast spanning Bayelsa State and Delta State. The 27,830 individuals and 457 communities that make up the represented parties are also said to be located along the coast and/or inland. The relevant area covers an area the size of Belgium. Unfortunately, the maps made available by the appellants to explain the geography are particularly unilluminating; the only one of any clarity does not show the location of any of the represented parties 1. As a result, and with all due respect to the individuals and communities concerned, when using examples to illustrate some of the points I wish to make below, I must do so by reference to the rather better-known geography of Belgium.
The Bonga oilfield is 120 kilometres off this part of the Nigerian coast. The second respondent (“SNEPCO”) is domiciled in Nigeria. It operates a FPSO (a Floating Production Storage and Offloading facility) in the Bonga oilfield which is linked to a SPM (Single Point Mooring Buoy) by three submersible flexible flow lines. The oil is extracted from the seabed via the FPSO through the flow line to the SPM and then on to the vessels and tankers which take the oil away.
During the night of 19/20 December 2011, the MV Northia moored at the SPM in order to load just under 1 million barrels of crude oil from the Bonga FPSO. Something went very wrong during this operation and there was a significant spillage of oil into the ocean, which was not acted on until 8am on 20 December. The first respondent (“STASCO”) is domiciled in the UK and was added as a defendant to these proceedings later, by way of amendment. It is alleged that STASCO is liable in law for the acts or omissions of the master and crew of the MV Northia, although there is a significant dispute about that.
The judge concluded that the oil would have reached the shoreline within a few days of 20 December 2011, deciding that it was clear (beyond reasonable argument to the contrary) that actionable damage would have been suffered along most if not all of the affected area within weeks rather than months of December 2011. There is now a dispute about whether damage caused by the oil getting into the inland waterways occurred at a much later date.
As set out in the appellants' amended particulars of claim, the damage caused by the December 2011 oil spill has been extensive, causing a dramatic and deleterious effect on fishing, farming, the mangrove forest and the supply of drinking water. Sadly, it appears that, due to the proliferation of oil extraction in West Africa, and numerous problems with oil theft and illegal refining, the December 2011 oil spill is far from being the only oil pollution that has affected this part of Nigeria during the relevant period.
The appellant, Mr Jalla, has not been chosen as one of the two representative claimants by accident. He is a respected and important person within the Bonga Community and is associated with a charity known as the Oil Spill Victims Vanguard, known as “OSPIVV”. I note that this was set up in January 2012, immediately following the December 2011 oil spill, which is itself an indication of when the oil first began to adversely affect at least some of these communities. The OSPIVV Constitution sets out a number of aims and objectives. One of them is referred to as:
“Participation in all negotiations and preparation of all texts, acts, guidelines or regulations as well as distribution of allocation of funds that are direct or indirect result of
compensation to victims and communities of oil spill and hazards of gas flaring.”
Although it is not entirely clear from these words, it is submitted that if, for example, Mr Jalla was successful in his claim for the cost of a reasonable remediation scheme, the money paid by the respondents would be distributed by OSPIVV.
One other point made on a number of occasions by Mr Dunning during his oral submissions was that the 28,000 plus represented parties had all given their authority to be represented by the appellants. Like just about everything else in this case, that is disputed. It is asserted on their behalf that the represented parties had given such authority to the original solicitors when the claims were commenced. Those solicitors have since come off the record and have been replaced. As I understand it, the replacement solicitors are still endeavouring to obtain the necessary authority.
THE PROCEDURAL BACKGROUND
The Original Pleaded Claims
The claim form was issued on 13 December 2017, just a week less than 6 years after the December 2011 oil spill. It was served on 4 April 2018. It identified a claim for damages/compensation, interest and costs. The original particulars of claim, served on 10 April 2018, sets out claims for negligence, nuisance, breach of statutory duty, trespass, Rylands v Fletcher, and breach of human rights under Nigerian law. They focus on the detrimental effect on the claimants' economic activities and quality of life and are accompanied by a claim for aggravated and exemplary damages. The relevant part of the prayer claims (1) damages; (2) a mandatory injunction requiring the defendants to put in hand a remediation scheme or, in the alternative at (3), the cost of an appropriate remediation scheme to be carried out by a third party 2.
The Representative Nature of the Action and the Summary Judgment Application
The original claim form identified the claimants as being the two appellants “and others”. The identity of those “others” was not further explained. The claim form was amended (without leave) when it was served on 4 April 2018, when it was said that the claim was advanced on behalf of the two appellants “for themselves and on behalf of the Bonga Community”. The composition of “the Bonga Community” was not explained. There is a separate dispute about the legitimacy of that amendment, and whether the additional words have any legal effect.
On 10 April 2018, when the original particulars of claim were filed and...
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