Harrison Jalla and Others v Royal Dutch Shell Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith,Stuart-Smith J |
| Judgment Date | 27 March 2020 |
| Neutral Citation | [2020] EWHC 738 (TCC) |
| Date | 27 March 2020 |
| Docket Number | Case No: HT-2017-000383 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 738 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stuart-Smith
Case No: HT-2017-000383
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: 24 th March 2020
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
This judgment is the result of a hearing on 24 March 2020 and is consequential on the handing down of my judgment [2020] EWHC 459 (TCC) on 2 March 2020 [“the Main Judgment”]. The hearing was conducted remotely with (so far as I am aware) all or nearly all participants separated because of the Coronavirus pandemic. I am told, and readily accept, that the consequences of the pandemic adversely affected the ability of the parties to prepare as easily and efficiently as they might otherwise have done. It is right that the Court should acknowledge both the achievements of and the difficulties faced by all in this case who have had to confront the changed litigation and human landscape created by the virus at short notice.
In the light of the Main Judgment the Defendants proposed that:
i) The proceedings should be struck out because the effect of the Main Judgment is that (a) the claims being brought by the two lead Claimants, Mr Jalla and Mr Chujor are statute barred and should be struck out, (b) the Bonga Community was never properly added and has never been represented in the proceedings, (c) since the claims of the two lead Claimants should be struck out there are no lead Claimants to represent the Bonga Community (or, if different, the thousands of individuals listed in Annex 1 to the Particulars of Claim), and (d) the action is not a “representative action” because there is insufficient identity of interest between the Claimants;
ii) The appropriate course is to follow the conventional route identified in Chandra v Brooke North [2013] EWCA Civ 1559 and refuse permission across the board (which would lead to a dismissal of the proceedings);
iii) The Defendants should have their costs of the proceedings;
iv) The Claimants' solicitors should provide information about how and by whom the Claimants have been represented.
The Claimants proposed a significantly different outcome, namely that:
i) Permission should be given to appeal the conclusion that time should not be extended by reference to the concept of continuing nuisance: see [62]–[68] of the Main Judgment;
ii) Declaratory orders should be made reflecting the Court's conclusions on the various applications;
iii) The Defendants' application to strike out the proceedings should be adjourned as not being truly consequential on the judgment and because the Claimants had not had time to prepare to meet it;
iv) There should be a direction that the Claimants file a further statement of case setting out and particularising their case on when their causes of action accrued. There should then be a CMC to address (a) whether, and if so how, the representative nature of the proceedings needs to be restructured, (b) whether there should be a preliminary issue to determine the applicable limitation period for these claims, and (c) how to determine which (if any) of the Claimants' claims are statute barred in light of the conclusions in the Main Judgment;
v) Detailed costs orders should be made to reflect what the Claimants regard as significant success on the issues covered by the Main Judgment.
Background matters
The Main Judgment sets out the history of delays on the part of the Claimants both before and since issuing proceedings. It does not need to be set out again here. What matters most, in my judgment, for present purposes is that it appeared until the morning of the September 2019 hearing that the Claimants were taking a unified and unitary approach to limitation. There was nothing in the pleadings to suggest that there were multiple different dates spread over many months or years upon which individual causes of action accrued. Such indications as there were suggested the opposite. For example, [5] of the Particulars of Claim alleged that “the Claimants are … Nigerian individuals and communities occupying land along the Nigerian coast on the Atlantic Ocean spanning two States, Bayelsa State and Delta State.” (Emphasis added). It appears from a map produced for the present hearing that the address given by the two lead Claimants was on the coast. The particulars of losses suffered (which are set out at [55] of the Main Judgment) gave no indication of any significant time-lag. The evidence put forward by both sides for the various applications in September and October strongly suggested that, if the Bonga oil reached land, it did so soon after the spill: see [34] of the Main Judgment. Even as late as their written submissions for the September hearing, the Claimants accepted that the Defendants' position on limitation (namely that the limitation period had expired by 4 April 2018) was arguable, without qualification. On the basis that it was appropriate to adopt a unitary approach to limitation, this concession would be sufficient for the Defendants' purposes on the applications and meant that there was no divergence of interest between Claimants on limitation.
The Claimants' response was to try to put in evidence about the date that damage was suffered many kilometres from the coast after the October hearing. That evidence was ruled inadmissible. No further steps were taken or submissions made by the Defendants in relation to the constitution of the proceedings as an apparently representative action within the meaning of CPR part 19 at any time after the Claimants' change of position on the first day of the September hearing until after the handing down of the Main Judgment. Then, by letter dated 10 March 2020 the Defendants informed the Claimants that striking out of the claim as a whole was a necessary consequence of the Main Judgment. The Defendants repeated and amplified their reasons thereafter in correspondence to the Court and in their Skeleton Argument for the present hearing. The Claimants objected to this application to strike out on the basis that it would be a new application and not one that should properly be regarded as consequential upon the Main Judgment, though they acknowledge that it arises as a result of observations contained in it.
Should the strike out application be entertained today?
The Claimants are correct to submit that the arguments now being pursued by the Defendants were not articulated as part of a submission that the proceedings should be struck out before, during or after the hearings until being outlined in the Defendants' letter of 10 March 2020. During the October 2019 hearing Dr Blake for the Defendants referred to the fact that the action is said to be brought under CPR 19.6 and to the provisions requiring that members of a group share common interests and that “that is of course another obstacle that my friends face.” The point was not developed. Later, when the Claimants made their late application to adduce further evidence about the date of damage, one of the points raised by the Defendants in opposition to the application was that “the Claimants cannot maintain a representative action under CPR rule 19.6 in circumstances where each of the 27,830 different Claimants comprising the...
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Harrison Jalla and Others v Royal Dutch Shell Plc
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Harrison Jalla v Shell International Trading and Shipping Company Ltd
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