Harrison Jalla and Others v Royal Dutch Shell Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 14 August 2020 |
| Neutral Citation | [2020] EWHC 2211 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2017-000383 |
| Date | 14 August 2020 |
[2020] EWHC 2211 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Heard remotely as at The Rolls Building,
7 Rolls Buildings, Fetter Lane,
London EC4A 1NL
Mr Justice Stuart-Smith
Case No: HT-2017-000383
Graham Dunning QC, Stuart Cribb, Wei Jian Chan, James Burton, 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 date: 28 th May 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
These proceedings were issued in December 2017 in the name of the two lead Claimants, Mr Jalla and Mr Chujor, “and others” who were then entirely unspecified. They were issued just under six years after an oil spill on 20 December 2011 off the coast of Nigeria. The Claim Form carried a Statement of Truth from Mr Chujor who gave his address as being on or near to the coast that was immediately proximate to the oil spill. In witness statements filed in the action, Mr Jalla has given the same address. After amendment of the Claim Form in April 2018, it said that the proceedings were brought by the two lead Claimants “and others” with the addition of the words “(for themselves and on behalf of the Bonga Community)”. The many individual Claimants and 457 communities on whose behalves the claims were said to be brought were listed in schedules to the Particulars of Claim. The only description of their location came in the Particulars of Claim which said 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” and comprising “fishing, farming and periwinkle pickers, commercial and subsistence fishing, shell fish harvesting and other coastal, maritime and riparian activities.”
The pre-action history of these proceedings is set out in detail in the judgment handed down on 2 March 2020: [2020] EWHC 459 (TCC) (“the March Judgment”). Until 19 September 2019 there was no suggestion from the Claimants that there was any material distinction to be drawn between individual Claimants or communities and when they would have been affected by the oil spill of which they complain: see [29]–[31] of the March Judgment. That was also implied by the Claimants' evidence in advance of the hearing, and nothing was ever said to the contrary.
Even in September 2019, the submission that some Claimants may have suffered damage materially later than others was put forward as a possibility. No evidence was put forward at that stage to support the suggestion at that stage: see [34] of the March Judgment. Specifically, the only information provided by the lead Claimants and admitted by the Court was that their properties were in the coastal area fronting the Atlantic Ocean which was immediately exposed to the oil spill. There was an attempt to introduce further evidence after the hearing, which was disallowed for the reasons set out at [35] ff of the March Judgement. Accordingly, the March Judgment was required to address limitation and other issues in this unsatisfactory state of the Claimants' evidence.
In the light of the March Judgment, the Defendants launched applications to strike out the proceedings adopting the following lines of reasoning and submission:
i) First, the claims of the Lead Claimants should be struck out as their land, being close to the coast, would have suffered damage soon after 20 December 2011. Their claims are therefore statute barred and should be struck out for that reason;
ii) Second, the purported amendment in April 2018 to join “the Bonga Community” was a nullity because Mr Jalla and Mr Chujor were out of time when it was made. The claims of “the Bonga Community”, which were added to the Claim Form by the amendment, should therefore be struck out. This has been referred to as “the Nullity Point”;
iii) Third, because the claims of Mr Jalla and Mr Chujor were and are to be struck out (under (i) above), there are no longer any “anchor” Claimants to act as representative Claimants for the purposes of a representative action;
iv) Fourth, and in any event, these proceedings are not properly constituted as a representative action in accordance with CPR 19.6 because the lead Claimants and those they purport to represent do not all have “the same interest” within the meaning of the rule. The Court therefore does not have jurisdiction to proceed with the claims as a representative action.
These submissions were raised in writing before the hearing of consequential matters arising out of the March Judgment on 24 March 2020. They could not fairly be disposed of on that date. Instead, further directions were given that have led to the present hearing: see [2020] EWHC 738 (TCC) (“the Consequentials Judgment”). Those directions included that the Claimants should file any further evidence upon which they wished to rely in opposition to the Defendants' strikeout application and should set out any proposals that they wished to advance “for the possible restructuring of these proceedings” if they are to continue: see the Consequentials Judgment at [10]. The directions were intended to lead to a final resolution of all consequential issues (including the Defendants' strikeout application) at a further hearing in May 2020.
The further hearing took place on 28 May 2020. For the reasons that appear below, final resolution remains a distant prospect. The present position was reasonably described during the hearing as a procedural nightmare. I would describe it as Kafkaesque.
Further Developments before the May Hearing
The Claimants were required to serve their evidence in reply and any proposals for the future conduct of these proceedings by 4pm on 24 April 2020.
On 20 April 2020, the Claimants' then solicitors issued fresh proceedings (HT-2020-000143 — “the Protective Proceedings”). The Claim Form states that there are 27,830 individual Claimants (described as “Individual Claimants”) and 479 Nigerian communities (described as “Community Claimants”) who are party to the proceedings, all of which are said to claim on their own behalf. Each of the named “Individual Claimants”, as well as claiming on their own behalf, is stated to claim on behalf of each community of which he or she is a resident. It is apparent from the information provided that there must be multiple Individual Claimants asserting that they represent the same Community Claimant in some cases; and that some Individual Claimants who have affected property in more than one community are asserting that they represent each of the communities in which their properties are located. In addition, it is stated that there are some Community Claimants for which there is no Individual Claimant who is resident in the community. For such communities it is stated that a claim is brought on its behalf in a representative capacity pursuant to CPR r. 19.6 by a named representative who is named in a schedule and who is resident in that community.
Mr Jalla and Mr Chujor are named Claimants in the Protective Proceedings. They are stated to have been appointed as Lead Claimants by the Community Claimants' Steering Committee and claim in a representative capacity on behalf of all of the communities, alternatively the communities in which they are resident and have land holdings. The number of communities involved has changed: there are now 479 named communities as opposed to the 457 listed in Schedule 2 to these proceedings. Apparently this is because the 22 additional communities have been identified as having been affected. It is asserted that some of the Community Claimants as parties to the Protective Proceedings have a legal personality as a matter of Nigerian Law but the Claimants do not know which. This has the bizarre consequence that the Claimants have joined Community Claimants not knowing whether they have legal personality or not, and therefore not having good grounds for asserting that they have. The Claimants state that they have put the claim in the Protective Proceedings “on every conceivable basis.” The Defendants are Shell International Trading and Shipping Company Limited (“STASCO”) and Shell Nigeria Exploration and Production Company Limited (“SNEPCO”)
Given the way that the present applications have unfolded, it is not necessary to analyse the constitution of the Protective Proceedings further. It is sufficient to say that the summary I have given shows two things. First, they are intended to guard against the possibility that these proceedings are struck out. Second, the numbers of persons asserting that they represent communities combined with the assertion that the Community Claimants are entitled to and do bring claims in their own capacity gives rise to a complex structure that may require closer investigation on another occasion.
A superficial reading of the brief details of claim makes clear that the Protective Proceedings are intended largely to mirror these proceedings. The brief details recite the alleged facts of the December 2011 spill and allege damage to the Claimants' land, waterways, property (including farm land, crops, livestock, farming...
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