Harrison Jalla and Others v Royal Dutch Shell Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith,Stuart-Smith J |
| Judgment Date | 02 March 2020 |
| Neutral Citation | [2020] EWHC 459 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2017-000383 |
| Date | 02 March 2020 |
[2020] EWHC 459 (TCC)
Mr Justice Stuart-Smith
Case No: HT-2017-000383
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Graham Dunning QC, Stuart Cribb, Wei Jian Chan, Phillip Aliker (instructed by Johnson & Steller) for the Claimants
Lord Goldsmith QC, Dr Conway Blake (instructed by Debevoise & Plimpton) for the Second and Third Defendants
Hearing dates: 19 th September, 7 th – 10 th October 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.
| Introduction | 1 |
| Limitation | 20 |
| Issue 1: When did actionable damage occur? | 54 |
| Issue 2: Should the limitation period be extended on the basis of continuing nuisance? | 62 |
| Issue 3: Should the limitation period be extended on the basis of deliberate concealment? | 69 |
| Issue 4: Are the defendants precluded by an estoppel by convention from challenging the correction of the name of the Second Defendant to STASCO in the Amended Claim Form? | 89 |
| The Claimants' 7 June 2019 STASCO Application | 103 |
| Issue 5: Does the STASCO application satisfy the requirements of CPR r.17.4(3) and/or CPR r. 19.5(3)(a)? | 103 |
| The Claimants' 3 October 2019 Claim Form Application | 155 |
| Issue 6: Does the Claimants' Claim Form application satisfy the requirements of s. 35(3) of the Limitation Act and CPR r 17.4? | 168 |
| The Claimants' 3 April 2019 Application to Amend the Particulars of Claim | 179 |
| The Defendants' Jurisdiction Application | 207 |
| Issue 7: Does the English court have jurisdiction to try the case against STASCO and, if so, should there be reverse summary judgment in its favour? | 226 |
| Issue 8: Should the claim against STASCO be stayed pursuant to Article 34 of the Recast Brussels Regulation? | 228 |
| Issue 9: Does the English court have jurisdiction to try the case against SNEPCO? | 248 |
| Issue 10: Has there been a failure to give full and frank disclosure when applying for permission to serve SNEPCO out of the jurisdiction? | 252 |
| Conclusions and the Way Forward | 273 |
Introduction
The First and Second Claimants bring this action on their own behalf and on behalf of a very large number of individuals (in excess of 27,500) who live by or in the hinterland of a stretch of the coast of Nigeria that spans two States, Bayelsa State and Delta State. I shall refer to all those individuals who claim by the action generically as “the Claimants”. In addition, the claim is said to be brought on behalf of 457 villages and communities that are alleged to have been affected by the oil spill that is the subject of the action. I shall refer to them as “the 457 Communities”.
About 120 kms off the coastline of Bayelsa State and Delta State lies the Bonga oil field, the infrastructure and facilities for which include a FPSO [“Floating Production Storage and Offloading”] facility which is linked to a SPM [“Single Point Mooring”] buoy by three submersible flexible flowlines. It is common ground that on 20 December 2011 there was a leak from one of the flexible flowlines between the FPSO and the SPM. The leak occurred while oil was being transferred from the FPSO, through the SPM, and thence onto the MV Northia [“the December 2011 Spill”]. Estimates vary but the quantity may be taken for present purposes as being over 40,000 barrels. The Claimants describe it as one of the largest spills in the history of Nigerian oil exploration. The Claimants allege that oil from the December 2011 Spill has devastated their shoreline and caused serious and extensive damage to their land and water supplies, and to the fishing waters in and around the Claimants' villages; and that, because it has not been cleaned up properly, it continues to cause damage.
In general terms, the Claimants allege that responsibility for the December 2011 Spill lies with companies forming part of the Shell group. The action is resisted on numerous grounds, including that the Defendants have not accepted and do not accept that any oil from the December 2011 Spill reached the Claimants' coastline or caused the damage that the Claimants allege.
I shall have to outline the background and procedural history in a little detail later. By way of preliminary introduction, the Claimants issued proceedings on 12 December 2017. The Claim Form named three defendants: (1) Royal Dutch Shell [“RDS”], (2) Shell International Limited [“SIL”], and (3) Shell Nigeria Exploration and Production Company Limited [“SNEPCO”]. The Claim Form asserted claims in respect of the December 2011 Spill and another spill that was alleged to have occurred on 15 July 2012 [“the July 2012 Spill”]. The original three Defendants were and are members of the Shell group. RDS and SIL are domiciled in England. SNEPCO is domiciled in Nigeria. Whatever the other merits of the proceedings, jurisdiction over SNEPCO required the presence of one or both of the English “anchor” defendants. By notice of discontinuance dated 5 September 2019, the Claimants have discontinued against RDS.
The Claimants amended the Claim Form on 4 April 2018. They relied on the provisions of CPR r 17.1 which, if applicable, permits an amendment of a statement of case without the permission of the Court before it has been served on the opposite party. The name of the second Defendant was amended by the addition of the words “Trading and Shipping Company” so that the second Defendant was now named as Shell International Trading and Shipping Company Limited [“STASCO”]. STASCO is domiciled in England and is another company within the Shell group of companies. At one point Mr Dunning QC for the Claimants submitted that there was no practical difference between SIL and STASCO and that they were “closely related” members of the Shell group. On being pressed, he backed away from that submission, which was unsubstantiated, and submitted instead that they were part of the same economic entity, namely the Shell group of companies. On the evidence it appears, and I find for the purposes of the present applications, that SIL and STASCO were separate legal entities within the overall Shell group and that they have separate functions: SIL provides legal and HR services to other companies in the Shell group but has no operations in the shipping industry, whether in the management of ships or otherwise; STASCO is, as its name suggests, a company that has some involvement with shipping operations (the extent of which is controversial). STASCO is now alleged to be directly responsible for the safe operation of the MV Northia and to be vicariously liable for the torts of its crew.
The original Claim Form, the Amended Claim Form and Particulars of Claim were served on RDS and STASCO on 10 April 2018. This was the first communication between the Claimants and STASCO. The Amended Claim Form and Particulars of Claim asserted claims in relation to the December 2011 Spill and the July 2012 Spill.
Permission to serve SNEPCO outside the jurisdiction
On 11 April 2018 the Claimants issued an application to serve SNEPCO out of the jurisdiction. The application was made by the Claimants with the intention that it should be decided ex parte. Fraser J first ordered that there should be a hearing at which the First Defendant should be heard, and then made the order for service out after a hearing attended by the Claimants and the First and Second Defendants on 9 July 2018. SNEPCO was not served with the application and was not represented at the hearing.
The Defendants' Jurisdiction Application – 28 September 2018
RDS, STASCO and SNEPCO each issued applications on 28 September 2018 challenging jurisdiction [“the Jurisdiction Application”] and applying for reverse summary judgment. In the absence of RDS, the Defendants now apply for:
i) A declaration that the Court does not have jurisdiction to try the claims, or alternatively, that the Court should not exercise any jurisdiction which it may have to try this claim (alternatively, specific claims), pursuant to CPR Part 11(1)(a) and/or (b);
ii) An order setting aside the Claim Form, the service of the Claim Form and the Order of Fraser J, which gave the Claimants permission to serve the Claim Form on SNEPCO out of the jurisdiction, pursuant to CPR Part 11(6)(a) and/or (b);
iii) In the event that the Court finds that there is no real issue against STASCO, an order striking out the claims against STASCO as having no real prospect of success pursuant to CPR Part 3.4(2)(a) and/or 24.2;
iv) In the alternative, an order that the proceedings be stayed pursuant to Article 34 of the Recast Brussels Regulation and/or CPR Part 11(6)(d) and/or CPR 3.1(2)(f) and/or section 49(3) of the Senior Courts Act 1981 and/or pursuant to the Court's inherent jurisdiction;
v) Further or consequential relief.
For reasons which I will touch on later, the Defendants' Jurisdiction Applications were ultimately listed to be heard in October 2019.
The Claimants' 3 April 2019 Application to Amend the Particulars of Claim
On 3 April 2019 the Claimants issued an application for permission to amend the Particulars of Claim. The amendments for which permission is sought are extensive and require detailed consideration later. At this stage it is sufficient to note two points. First, the draft Amended Particulars of Claim continued to advance claims in relation to the December 2011 Spill and the July 2012 Spill; but, by the time of the hearing of the Claimants'...
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