Harrison Jalla v Royal Dutch Shell Plc
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice O'Farrell |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWHC 2118 (TCC) |
| Docket Number | Claim no. HT-2017-000383 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 2118 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
The Thomas Moore Building,
Fetter Lane, London
EC4A 1NL
Mrs. Justice O'Farrell
Claim no. HT-2017-000383
Claim no. HT-2020-000143
Mr. Graham Dunning QC, Mr. OBA Nsugbe QC, Mr. Stuart Cribb and Mr. Wei Jian Chan (instructed by Rosenblatt LLP) appeared for the Claimants.
Lord Goldsmith QC, Dr. Conway Blake and Mr. Tom Cornell (instructed by Debevoise & Plimpton LLP) appeared for the Defendants.
APPROVED JUDGMENT
This is the claimants' application for an extension of time in respect of both claims currently before the court: claim HT-2017-000383 and claim HT-2020-000143. In each case, the application that was issued on 2nd July 2021 sought an order extending the date for service of witness evidence in support of the claimants' case on when the relevant accruals of damage occurred, permission to serve supplemental expert evidence in respect of that evidence and permission to amend the date of damage pleading, all by the 20th August 2021.
The background to the dispute has now been set out in a number of judgments, both by this court and by Stuart-Smith J (as he then was). In summary, the dispute arises out of an oil spill which occurred in the Bonga oil field off the coast of Nigeria on 20th December 2011. The oil spill emanated from an offshore floating production storage and offloading facility, located approximately 120 kms off the Nigerian coastline of Bayelsa State and Delta State within the Nigerian Exclusive Economic Zone.
In the proceedings currently before the court, the claimants allege that oil from the Bonga 2011 spill hit the shoreline and migrated inland causing serious and extensive damage to the land, water supplies and to the fishing waters. The claim is for damages and/or compensation for pollution and environmental degradation caused by the oil spill, which is causing ongoing damage to the land and fishing waters around the villages. The claims are made in negligence, nuisance and Rylands v Fletcher liability, subject to the judgment in the Court of Appeal on lack of continuing nuisance, the outstanding judgment in relation to representative parties in respect of the appeal that has just concluded in the Court of Appeal, and any appeal to the Supreme Court.
The matter came before Stuart-Smith J (as he then was) in relation to, amongst other things, jurisdictional challenges by the defendants. The judge gave a judgment on 2nd March 2020 in which he resolved some, but not all, of the matters that were before him. In particular, the judge was unable to reach a concluded view on whether or not any part of the claims were statute-barred for limitation because the judge did not have sufficient evidence before him to determine the date of damage of the potentially 27,830 claimants and the 479 communities that were said to have been affected.
On 27th March 2020, the judge provided directions so that the issue of the date of damage could be determined. The judge ordered that by 24th November 2020, which date was extended by two months to allow for prospective difficulties caused by the pandemic, the claimants were to file a date of damage pleading setting out the claimants' case on when all relevant accruals of damage occurred with sufficient particularity to enable the defendants to know the case that they had to meet, together with any lay evidence upon which they wished to rely in support of that pleading, and any expert evidence on which they wished to rely. There was then provision for the defendants to respond to the pleading and evidence by 5th April 2021, and it was then anticipated that there would be a further CMC in December 2020. The date of damage issue would be resolved by a preliminary trial or preliminary issues during the summer term of 2021; that would be by now.
The matter did not progress as anticipated by the judge and the matter came before this court on 19th November 2020. At that directions hearing, the court dealt with a number of procedural issues, including a determination as to whether or not there would be a hearing to determine the date of damage and limitation issues; if so, further timetabling matters to enable that to take place. The court, in its order dated 18th December 2020, provided for the claimants to serve their date of damage pleading, lay evidence and expert evidence (to include expert evidence in relation to Nigerian law) in both the 2017 proceedings and the 2020 proceedings by 4th June 2021. There was then provision for the defendants to provide a responsive pleading in evidence by 29th October 2021.
There was also provision for the claimants to serve proposals for determining the preliminary issues, including a proposed methodology for any sampling or extrapolation case, and indications as to the categories and number of factual witnesses that would give evidence, together with an outline timetable for the hearing.
At the hearing on 19 th November 2020, the court fixed the preliminary issues trial for the date of damage, to include the dates on which the claimants first suffered actionable damage, the appropriate limitation periods applicable to those claims, limitation as a defence, and then potentially any further issue that the court ordered should be heard. That trial is currently fixed for a four-week hearing commencing on 21st February 2022.
The claimants suffered some difficulties in complying with that timetable and therefore sought and obtained the defendants' agreement to an extension of time. That was set out in a consent order dated 2nd June 2021, approved by the court, which extended time for the claimants to serve their pleading and evidence to 2nd July 2021, and extended time for the defendants to serve their responsive pleading and evidence by 26th November 2021. That extension meant that it would not be possible for the claimants and defendants to exchange proposals as to the mode of determination of the issues in February 2022, but the parties agreed that there would be an additional case management conference before this court in October 2021 at which those matters could be considered.
On 2nd July, the claimants served their date of damage pleading. The date of damage pleading is stated to be served in support of the following claimants only: first of all, the personal claims of Mr. Jalla in the 2017 proceedings; secondly, the personal claims of Mr. Ojulu, Mr. Agbeyagbe, Ms. Elizabeth Ekolokolo in the 2020 proceedings; and the claims brought on behalf of five of the communities in the 2020 proceedings.
The evidence that was served in support of the date of damage pleading was five witness statements from claimants and one witness statement from Mr. Barry Roche, the managing director of Rosenblatt Limited, the solicitors acting for the claimants. Further, the claimants served expert reports in support of their date of damage pleading, namely, from the Environmental Protection Engineering SA and BM Consultants (‘the EPE Report’) dealing with the Bonga oil spill, its travel to the shoreline, and its likely timeline for dispersal; further, the Brookes Bell report dated 5th June 2019, which analysed by way of chemical analysis a report that had been produced by Fugro GB Marine Limited, experts instructed in February 2012 by the defendants; and further, a report of Professor Ojukwu SAN dealing with the Nigerian law of limitation. That report was dated 2nd July 2021.
Further, the claimants indicated that they relied upon additional witness statements from Mr. Ekotogobo dated 21st March and 20th April, 2020, the witness statements of Mr. Chujor dated 21st March, 2020 and 20th April, 2020, and an affidavit from Mr. Chujor dated 20th June, 2020. There was also reliance on various contemporaneous documents.
Therefore, as of 2nd July of this year, the claimants have served, as required by the court, a date of damage pleading, lay witness evidence in support of the case set out in that pleading, and expert evidence in support of the case set out in that pleading, together with expert evidence on the Nigerian law of limitation.
However, the date of damage pleading and the evidence served does not cover all of the claimants as anticipated by the court when the order was made last December. The claimants, in their application, wish to produce a further schedule which will contain the existing schedules to the Particulars of Claim in both actions, but reformatted so that additional evidence or assertion is included as to the alleged date of damage...
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...extension of time for the claimants to provide additional details of the case on date of damage (see transcript of the judgment at [2021] EWHC 2118) (“the Extension 29 Contrary to suggestions in the claimants' evidence filed for the purpose of the applications now before the court, the cour......
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Harrison Jalla v Shell International Trading and Shipping Company Ltd
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