Harrison Jalla v Shell International Trading and Shipping Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Edis,Lord Justice Underhill |
| Judgment Date | 28 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1559 |
| Docket Number | Case No: A1/2021/1323 & A1/2021/1324 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1559
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Coulson
and
Lord Justice Edis
Case No: A1/2021/1323 & A1/2021/1324
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURT
TECHNOLOGY AND CONSTRUCTION COURT
Mrs Justice O'Farrell DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Appeal 3: Refusal to Extend Time
Graham Dunning QC, Stuart Cribb and Wei Jian Chan (instructed by Rosenblatt Ltd) for the Appellants
Lord Goldsmith QC, Conway Blake and Tom Cornell (instructed by Debevoise and Plimpton) for the Respondents
Hearing dates: 30 September 2021
Approved Judgment
Introduction
For the reasons explained in her ex tempore judgment given on 20 July 2021 ( [2021] EWHC 2118 (TCC)), O'Farrell J (“the judge”) refused to extend time further to allow more of the claimants in these two actions to serve Date of Damage Pleadings (“DODPs”) and associated material. In consequence of that order, the claims of only 9 of the 28,000 plus claimants – 5 communities 1 and 4 individuals — survive to be considered at the trial of the limitation issues due in February 2022. The claimants seek permission to appeal (“PTA”) against the judge's order.
By reason of the urgency of that application, exacerbated by a CMC on Friday 8 th October to consider the detail of the forthcoming trial, this court agreed to deal with the application for PTA, and the substantive appeal if permission were granted, at a rolled-up hearing on 30 September 2021. On Monday 4 October, we informed the parties that we would grant PTA, but refuse the appeal on the merits. This judgment sets out my reasons for those conclusions.
The Relevant Background
It is unnecessary to set out the background. This case will not be unknown to even the casual reader of BAILLI, having been the subject of eight judgments already: six at first instance and two in this court. Stuart-Smith J (as he then was) set out the background to the dispute in some detail in his judgment dealing
with the limitation issues at [2020] EWHC 459 (TCC) (“the limitation judgment”). I make a number of references to that judgment belowThe claims concern an oil spill off the coast of Nigeria in December 2011. The spill happened at a platform owned/operated by Shell companies in the Bonga oilfield, which is why the papers talk about “the Bonga oil” or “the Bonga spill”. For reasons unexplained, the original proceedings were only commenced in December 2017, a week before any six year limitation period expired. There is a separate dispute, raised by the defendants, to the effect that the relevant Nigerian limitation period was five years rather than six.
I should make two things clear about precisely who is covered by the term “the claimants”. In the 2017 proceedings, there were two named claimants, Harrison Jalla and Abel Chujor. Although it was said that they represented some 27,830 other individuals and 457 communities, and that this was in essence a representative action pursuant to CPR r.19.6, Stuart-Smith J rejected that submission and ruled that the 2017 action was not and could not be a representative action ( [2020] EWHC 2211 (TCC)). That decision was recently upheld by this court ( [2021] EWCA 1389). That means that the 2017 action now involves just two claims, those of Mr Jalla and Mr Chujor.
In order to try and ameliorate these difficulties, a second action was begun in April 2020. Although this features most of the same 28,000 plus claimants who were identified in the 2017 action, there are some who were new 2. At one time, the claims advanced in the two actions were said to be different too, although
now that the 2017 action is in respect of Mr Jalla and Mr Chujor only, those differences have fallen awayThe proceedings were originally started against the wrong defendant. Of the two defendants now before the court, it is accepted that it is the second defendant (“STASCO”) who matters, because they are the anchor defendant, domiciled in England. If the claim against STASCO is statute-barred, the English courts do not have jurisdiction to hear these claims. STASCO were not joined until 4 April 2018, and the key allegations against them were not made until 2 March 2020. Assuming a six year limitation period, this made the relevant dates for limitation purposes 4 April 2012 and/or 2 March 2014. This was respectively 4 months, and/or 2 and a quarter years, after the Bonga oil spill itself. The separate April 2020 action gave rise to a relevant date for limitation purposes of April 2014.
The defendants have raised a jurisdictional challenge which in part turns on the limitation defence of STASCO. It had originally been assumed by everyone that the claims were in respect of damage to land along the relevant stretch of the Nigerian coast, and that there would be one date for the accrual of the claimants' cause of action. That is how the claim in the 2017 action was pleaded. The limitation judgment made plain that such a cause of action accrued before April 2014 and was therefore statute-barred. Stuart-Smith J said:
“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 above.”
However, during the hearing in September 2019 which led to that judgment, the claimants suggested, for the first time, that, because some of the properties were inland, the oil may have taken much longer to reach those properties, and that as a result there might be many different (and later) dates for limitation purposes. Stuart-Smith J said:
“60. Because of the almost complete lack of specificity or evidence about the migration of oil and the location of Claimants, it is not clear that all Claimants had suffered actionable damage by 4 April 2012. However, there is no material before the Court to indicate that the Defendants do not have a reasonably arguable case on limitation for the action as a whole, simply based upon the date of the December 2011 Spill, the short time it would have taken to get to the shoreline, and the months that remained before 4 April 2012 for actionable damage to occur over a wide area. The Claimants do not plead when they first suffered damage, either in general terms or specifically. Neither in the pleadings nor in evidence is there any analysis of the location, alleged date of damage, or mechanism of migration and heads of damage caused by migrating oil. The only assumption that can safely be made is that the further from the shoreline and the more remote in time it may ultimately be alleged that damage was first suffered, the greater will be the need for the case to be properly pleaded and for evidence, both general and specific, to sustain a claim that the individual Claimants suffered actionable damage by Bonga Oil. In these circumstances, apart from being confident that any Claimants who had not suffered damage by 4 April 2012 but who will ultimately prove that they suffered...
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