Harrison Jalla and Others v Shell International Trading and Shipping Company
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Newey,Lord Justice Lewison |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] EWCA Civ 63 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2020/0763 |
[2021] EWCA Civ 63
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
MR JUSTICE STUART-SMITH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Newey
and
Lord Justice Coulson
Case No: A1/2020/0763
Graham Dunning QC, Stuart Cribb, Wei Jian Chan and Phillip Aliker (instructed by Johnson & Steller) for the Appellants
Lord Goldsmith QC and Dr Conway Blake (instructed by Debevoise & Plimpton) for the Respondents
Hearing Dates: 1 st & 2 nd December 2020
Approved Judgment
INTRODUCTION
The issue that arises on this appeal is whether or not the appellants have a cause of action for a continuing nuisance, which would defeat the respondents' limitation defence, or whether, as the judge found, they have a single claim in nuisance which, for many if not most of the appellants, is likely to be statute-barred.
On the appellants' case, the respondents were responsible for an oil spill, 120 km off the shore of Nigeria. It appears that the spill lasted for about 5–6 hours on 20 December 2011, before the relevant pipeline was switched off and the oil stopped leaking into the sea. The oil washed up onto the appellants' land within weeks rather than months thereafter. The primary limitation period in both negligence and nuisance therefore expired six years after that, some time in early 2018. Critical elements of the claim were not commenced until after that time. The appellants' contention is that, despite that, their claims in nuisance are not statute-barred, because the damage caused by the spill has allegedly continued and is continuing, and thereby gives rise to a fresh cause of action in nuisance every day that the oil remained on their land.
In his judgment, which dealt with a wide variety of other issues, Stuart-Smith J (as he then was) (“the judge”) concluded that this single spill gave rise to a one-off claim in nuisance which crystallised within weeks rather than months of 20 December 2011. He found that the appellants' claims were not, and could not be, claims for continuing nuisance. For the reasons explained below, this had far-reaching consequences for the appellants' claims in these proceedings.
In Section 2 below, I set out the factual background and, in Section 3, the procedural background. I summarise the judgment and the consequential order in Section 4. At Section 5, I identify the issue and the context in which it falls to be decided on this appeal. Thereafter, at Section 6, I address five principal authorities on nuisance, and in Section 7, I analyse the appellants' case that claims of continuing nuisance were open to them on the facts of this case. I deal briefly with the other matters that might potentially have affected this appeal in Section 8, and there is a short summary of my conclusions at Section 9. The court is grateful to leading counsel on both sides, and the teams that supported them, for the excellence of their written and oral submissions.
THE FACTUAL BACKGROUND
I set out the factual background to this case by borrowing heavily from the judge's comprehensive judgment, Neutral Citation Number [2020] EWHC 459 (TCC).
i) The Parties
The appellants comprise 27,800 individuals and 457 communities who live and work by or in the hinterland of a stretch of Nigerian coast spanning Bayelsa State and Delta State. Although there are now issues as to whether or not this case is properly constituted as a Representative Action, those issues do not arise for decision on this occasion (although we are told they will arise in an appeal next year).
As for the respondents, the original first defendant, Royal Dutch Shell (“RDS”), has now been deleted from these proceedings and I say no more about it. The original second defendant was Shell International Limited (“SIL”). That company, too, no longer plays a part in these proceedings.
By an amendment dated 4 April 2018, the appellants sought to amend the claim so as to add a new second defendant, Shell International Trading and Shipping Company Limited (“STASCO”). STASCO is domiciled in the UK. It is the first respondent to this appeal. Prima facie, many of the claims against STASCO were not brought until after the expiry of the primary limitation period in early 2018.
The original third defendant (and now second respondent) is and always has been Shell Nigeria Exploration and Production Company Limited (“SNEPCO”). SNEPCO is domiciled in Nigeria. It is, I think, common ground that the English Courts only have jurisdiction to consider the claims against SNEPCO if there are valid claims against STASCO. STASCO is therefore what is commonly known in these cases as the “anchor” defendant. That explains why the strength (or otherwise) of STASCO's limitation defence is so fundamental.
ii) The Spill
The Bonga oil field is 120 kms off the coast of Nigeria. It includes a FPSO (a Floating Production Storage and Offloading facility), which is linked to a SPM (Single Point Mooring buoy) by three submersible flexible flowlines. The oil is extracted from the seabed via the FPSO, through the flowlines to the SPM, and then on to vessels and tankers.
The detailed circumstances of the spill are set out at [32] of the judgment as follows:
“32. The Claimants' case is that the MV Northia moored at the SPM on 19 December 2011 in order to load just under 1 million barrels of crude oil from the Bonga FPSO. Loading operations commenced that evening. Some time before 3 a.m. on 20 December, one of the flexible flowlines between the FPSO and the SPM ruptured and the spill started. During the loading operation the ship/shore volume differential was being determined on an hourly basis on board both the Bonga FPSO and the MV Northia, which the Claimants say accords with best practice. At about 3 a.m. and hourly thereafter an inexplicable difference was recorded between the amount transferred from the FPSO and the amount received by the MV Northia. The Claimants allege that this should have led to loading being stopped immediately as it was indicative of leakage between the FPSO and the vessel; but it was not. At about 7 a.m. an oil sheen was seen on the water by the crew of the vessel; but it was not until about 8 a.m. that the FPSO's loading master directed that loading should stop; and loading did not cease until 8.24 a.m. It is the essence of the complaint and case that the Claimants now wish to advance that legal responsibility for failure to prevent the continued spillage after 3 a.m. rests jointly with those operating the FPSO and the master and crew of the MV Northia and those responsible for their actions [1]. There is no doubt that SNEPCO was the operator of the FPSO. The question of STASCO's responsibility for the master and crew is much more contentious, as appears below.”
iii) The Damage
Before the judge, there was evidence (and subsequent debate) about when the damage occurred. He set out the detail at [33] – [34] and [54] – [58]. He was considering when the damage occurred by reference to the date of 4 April 2012, because that was 6 years before the claim was first made against STASCO; if the damage had occurred before 4 April 2012, the claims against STASCO were prima facie statute-barred.
The judge's findings on this point were at [59] – [61] in the following terms:
“59. On the basis of the information before the Court, which I have summarised briefly above, it is safe to conclude without conducting a mini-trial that if the oil from the December 2011 Spill was responsible for the damage of which the Claimants complain, then oil reached the shoreline within a few days of 24 December 2011. Evidently, some parts of the shoreline included within the claims in this litigation were more remote than others from the Bonga FPSO and so landfall would not all have occurred at the same time. However, it is clear beyond reasonable argument to the contrary that actionable damage as alleged would have been suffered along most if not all of the affected shoreline within weeks rather than months of the December 2011 Spill. Not only is there actual evidence of oil reaching the shoreline at about the end of December 2011, but also no plausible mechanism has been suggested that would lead to the December 2011 Spill getting as close as it did to the shoreline by 24 December 2011 but then (assuming it did) causing such havoc over the allegedly affected shoreline only after some extended delay. This does not mean that all Claimants living and working along the shoreline were affected as soon as oil first hit land; but the substantial quantities of polluting oil alleged by the Claimants strongly support the conclusion that, where oil hit a particular stretch of the shoreline, many if not all Claimants living and working in that area would have suffered one or more of the effects of which they now complain within a short time. Even without conducting a mini-trial, therefore, the Court can be confident that actionable damage sufficient to start time running in negligence and/or nuisance occurred for many Claimants before 4 April 2012. This is supported primarily by the movement of the Bonga oil slick and the location and timing of the FUGRO samples as summarised in the Appendices to the Brookes Bell report and also by the other evidence summarised...
To continue reading
Request your trial
- Harrison Jalla and Others v Shell International Trading and Shipping Company
-
Jalla and another v Shell International Trading and Shipping Company Ltd and another
...[2023] UKSC 16 before Lord Reed, President Lord Briggs Lord Kitchin Lord Sales Lord Burrows Supreme Court Easter Term On appeal from: [2021] EWCA Civ 63 Appellants Jonathan Seitler Alice Hawker Stuart Cribb (Instructed by RBL Law Ltd) Respondents Lord Goldsmith KC Dr Conway Blake Tom Cornel......
-
J v S
...On 27 January 2021, the Court of Appeal upheld the Continuing Nuisance Judgment that there was no continuing nuisance, as reported at [2021] EWCA Civ 63 (“the Continuing Nuisance Appeal”). v) On 29 September 2021, the Court of Appeal upheld the Strike-Out Judgment, as reported at [2021] E......
-
Harrison Jalla and Abel Chujor v Shell International Trading and Shipping Company Ltd
...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. 3 In Section 3, I address the procedural background by reference to four particular elements: the claims as originally pleaded; the limitat......