His Royal Highness Emere Godwin Bebe Okpabi and Others v Royal Dutch Shell Plc (First Defendant) Shell Petroleum Development Company of Nigeria Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 26 January 2017 |
| Neutral Citation | [2017] EWHC 89 (TCC) |
| Docket Number | Case No: [2015] EWHC HT-2015-000241 & HT-2015-000430 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 26 January 2017 |
and
[2017] EWHC 89 (TCC)
The Honourable Mr Justice Fraser
Case No: [2015] EWHC HT-2015-000241 & HT-2015-000430
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
7 Rolls Building
Fetter Lane
LONDON
EC4 1NL
Richard Hermer QC, Marie Louise Kinsler and Edward Craven (instructed by Leigh Day) for the Claimants.
Lord Goldsmith PC QC and Sophie Lamb (instructed by Debevoise & Plimpton LLP) for the Defendants.
Hearing dates: 22 to 24 November 2016
This judgment concerns four applications. There are two sets of proceedings being heard together, and in those sets of proceedings there are four applications, one by each defendant in each set of proceedings. Both sets of proceedings arise out of oil operations in Nigeria. The first defendant in each action is Royal Dutch Shell plc ("RDS"), the ultimate holding company of the worldwide Shell Group which comprises many oil companies in a great number of different countries. The second defendant is the Nigerian company that is responsible for Shell onshore oil operations in Nigeria, the Shell Petroleum Development Company of Nigeria Ltd ("SPDC"). It is a subsidiary within the Shell group of companies, and the precise corporate relationship between SPDC and RDS is directly relevant to the issues on this application, and will be dealt with later, in Part I "The Shell Group corporate structure". This judgment is in the following parts:
A Introduction
| Para | |
| A Introduction | 2 |
| B The issues on these applications | 16 |
| C Disputed Evidence | 22 |
| D The Position of Leigh Day | 33 |
| E Other relevant litigation — the Bodo litigation and the Vedanta litigation | 37 |
| F The Governing Law | 50 |
| G The law concerning jurisdiction and RDS | 62 |
| H Liability in tort of a parent company for the acts/omission of a subsidiary | 70 |
| I The Shell Group corporate structure | 81 |
| J Applying the relevant test | 107 |
| K Conclusion | 118 |
The first set of proceedings has action number HT-2015-000241 and is entitled His Royal Highness Emere Godwin Bebe Okpabi and others v (1) Royal Dutch Shell plc (2) The Shell Petroleum Development Company of Nigeria Ltd. There are twenty named claimants in what is a representative or group action. HRH Okpabi is the first named claimant and is King and Paramount Ruler of the Ogale community in Nigeria. The second named claimant is the Staff Bearer, the third named claimant is the Land Priest, and these three persons, together with the fourth to 17 th named claimants, comprise the Council of Chiefs of the Ogale community. The 18 th named claimant is the Palace Secretary, the 19 th claimant is the Chairman of the Community Development Committee and the 20 th named claimant is the Youth President. All of the first to 17 th named claimants are chiefs. These proceedings are brought by these twenty named claimants both for themselves and on behalf of the people of the Ogale community in Nigeria. This community comprises approximately 40,000 individuals. The Ogale community are part of the Ogoni people. I shall refer to these proceedings as "the Ogale claims". Paragraph 1 of the Particulars of Claim pleads that the claimants "seek damages arising as a result of serious and ongoing pollution and environmental damage caused by oil spills emanating from the Defendants' oil pipelines and associated infrastructure in and around the Ogale Community in Nigeria". Damages for clean-up and remediation costs, alternatively injunctive relief, are claimed.
The second set of proceedings has action number HT-2015-000430 and is entitled Lucky Alame and others v (1) Royal Dutch Shell plc (2) The Shell Petroleum Development Company of Nigeria Ltd. There are a total of 2,335 different claimants in these proceedings. These proceedings concern damage said to have occurred in and around Bille Kingdom in Nigeria. I shall refer to these proceedings as "the Bille claims". Paragraphs 1 and 2 of the Particulars of Claim in the Bille claims plead that the claims are for "damages arising as a result of serious and ongoing pollution and environmental damage caused by oil spills emanating from the Defendants' oil pipelines and associated infrastructure in and around Bille Kingdom in Nigeria". The claims against RDS "are based on the tort of negligence under the common law of Nigeria." The claims against SPDC "are based on relevant causes of action under Nigerian statute and common law".
These two claims therefore between them concern about 42,500 individual claimants. Without wishing to over-simplify what are very detailed claims, in summary they concern oil pollution in Nigeria that has affected wide areas of land across the Niger Delta, the waters of the Delta itself, activities both on land and on water, and considerable numbers of people. The claimants in both sets of proceedings are all resident in Nigeria and Nigerian citizens. The place of incorporation of RDS is the United Kingdom, and it has its registered office in the United Kingdom. It is listed on the FTSE stock exchange in London, as well as on other stock exchanges worldwide such as in New York and Amsterdam. SPDC is a Nigerian-registered exploration and production company incorporated under the laws of the Federal Republic of Nigeria. Its registered office is in Port Harcourt, Rivers State in Nigeria. It is the operator of a joint venture formed by means of an agreement between itself, the Nigeria National Petroleum Corporation, Total Exploration and Production Nigeria Ltd and Nigeria Agip Oil Company Ltd ("the Joint Venture"). These latter two companies are also Nigerian-registered oil companies. RDS is not a member of the Joint Venture.
The Claim Form in the Ogale claims was issued on 14 October 2015 and served on RDS within the jurisdiction. Service was acknowledged by Debevoise & Plimpton LLP on behalf of RDS by means of an Acknowledgement of Service dated 30 October 2015. That form made clear that RDS intended to contest the jurisdiction of the court.
The Claim Form in the Bille claims was issued on 22 December 2015 and served on RDS within the jurisdiction. Service was again acknowledged by Debevoise & Plimpton LLP on behalf of RDS by means of an Acknowledgement of Service dated 6 January 2016. That form also made clear that RDS intended to contest the jurisdiction of the court in those proceedings too. RDS issued applications seeking a declaration that the court did not have jurisdiction to try the claims, alternatively should not exercise any jurisdiction that it does have, pursuant to CPR Part 11.1(a) and/or (b).
In both the Ogale claims and the Bille claims, SPDC was served with the respective proceedings outside the jurisdiction, pursuant to an Order of HHJ Raeside QC made after a half-day ex parte hearing on 2 March 2016. On 26 April 2016, SPDC applied to have the Claim Form, service of the Claim Form and the Orders by HHJ Raeside QC set aside, alternatively to have those proceedings against it stayed.
The four applications in the two actions therefore raise very similar, but not identical, issues, and were case managed and heard together. The reason that they are not identical is there are other proceedings in the Federal Court of Nigeria have been issued in the name of Chief Gani Topba stating that they are on behalf of the people of Ogoniland ("the Ogoni people"), defined by four different Local Government Areas. The Ogale people are part of the Ogoni people, although the claimants in the Ogale proceedings deny that Chief Gani Topba has authority to act on their behalf. SPDC is the fourth named defendant in those proceedings, which were issued on 28 May 2015, the other defendants being the Federal Republic of Nigeria, the Attorney-General of the Federation at the Federal Ministry of Justice, and the National Oil Spill Detection and Response Agency. That claim is for a declaration, a sum in excess of one billion US dollars in special damages, and general damages of one hundred billion US dollars in respect of clean-up and remediation costs. On the face of it, this includes a claim by the Ogale community as the members of that community are part of the Ogoni people.
RDS and SPDC were represented by the same law firm and the same counsel before me, as were all the claimants in both the Ogale claims and Bille claims. Hearings contesting jurisdiction are not supposed to require full expositions of the factual and legal issues. In VTB Capital Plc v Nutritek International Corp [2013] 2 AC 337 Lord Neuberger said:
"…hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost."
Most recently in the Technology and Construction Court, in Lungowe and others v (1) Vedanta Resources plc (2) Konkola Copper Mines plc [2016] EWHC 292 (TCC) ("the Vedanta litigation") Coulson J referred, in the context of the jurisdictional challenges in that case, to the fact that "the central issue raised by these twin applications, namely where these claims should be tried, assumed all the trappings of a State trial". The two instant sets of proceedings continued what must be described as an alarming trend. These applications involved a bundle for the hearing of 33 lever arch files, with 37 witness statements from 29 different individual witnesses, together with reports from a number of...
To continue reading
Request your trial
-
AAA and Others v Unilever Plc and Another
...J in Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC), and more recently still by Fraser J in Okpabi v Royal Dutch Shell [2017] EWHC 89 (TCC). The general outline of those cases was similar, in that Zambian (or as the case might be, Nigerian) claimants who were affected by the activi......
-
Dominic Liswaniso Lungowe and Others v Vedanta Resources Plc and Another
...the decision of Fraser J in Okpabi and others v. Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC), which is relied on by the appellants in the present 52 Fraser J was invited by the Okpabi claimants to follow the decision of the Judge in the......
-
HRH Emere Godwin Bebe Okpabi and Others (suing on behalf of themselves and the people of Ogale Community) v (1) Royal Dutch Shell Plc
...there was no arguable case that RDS owed the claimants a duty of care, see Okpabi and others v. Royal Dutch Shell Plc and another [2017] EWHC 89 (TCC); and, by an order of 1 February 2017, he made the following declarations [ 1#7]: (1) Pursuant to CPR 11(1)(a) the court did not have jurisd......
-
Município De Mariana (and the Claimants identified in the Schedules to the Claim Forms) v BHP Group Plc (formerly BHP Billiton Plc)
...done in the foreign country by the foreign court, and that is why cogent evidence is required.” In HRH Okpabi v Royal Dutch Shell Plc [2017] EWHC 89 (TCC), at para 121, Fraser J commented that the “the court has to be very careful before passing qualitative judgments on the legal systems o......
-
The Hague Rules On Business And Human Rights Arbitration
...plc and another [2017] EWCA Civ 1528; Okpabi and others v Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC). 4 Arbitration Rules of the United Nations Commission on International Trade The content of this article is intended to provide a gener......
-
No English jurisdiction over Nigerian oil pollution claims against Shell
...policy was also not enough to suggest that the corporate veil should be pierced: Okpabi & ors v Royal Dutch Shell plc & anr [2017] EWHC 89 (TCC). The English claims against Shell Petroleum Development Company of Nigeria Ltd (SPDC) and Royal Dutch Shell (RDC) were brought by the Ogale and Bi......
-
2017 Summer review: M&A legal and market developments
...to impose a duty was bound to fail. Appeal hearings are awaited in relation to both judgments. (Okpabi v Royal Dutch Shell and another [2017] EWHC 89 (TCC) and AAA and others v Unilever plc and another [2017] EWHC 371 (QB)) Key lessons Previous test for imposing a duty applied: These jud......
-
Table of cases
...pty Ltd [2005] NSWSC 45 II.6.92 Okotcha v Voest alpine Intertrading Gmbh [1993] BCLC 474 III.26.159 Okpabi v royal Dutch Shell plc [2017] EWhC 89 (TCC) II.10.29 Olanda, he [1919] 2 KB 728 II.6.48 Olbourne v Excell Building Corp pty Ltd [2009] NSWSC 349 II.6.92, III.24.178, III.24.201 Oldcor......
-
Cross-border litigation in England and Wales
...His Royal Highness Emere Godwin Bebe Okpabi and Others v. Royal Dutch Shell Plc and ShellPetroleum Development Company of Nigeria Ltd, [2017] EWHC 89 (TCC), para. 82.152. HM Government, ‘Providing a cross-border civil judicial cooperation framework: A future partnership paper’, HMGovernment......
-
James Hardie and the Development of Parent Company Liability: New Zealand as a Forum for Transnational Human Rights Litigation?
...Environment” (1 March 2018) HumanRightsWatch . 106 HRH Okpabi , above n 105, at [36]. 107 At [8]–[9]. 108 Okpabi v Royal Dutch Shell Plc [2017] EWHC 89 at [122]. 109 HRH Okpabi , above n 105, at [23], per Simon LJ; and at [36], per Vos C. 110 At [89]. 111 Simon LJ addressed the key issue of......
-
Negligence
...[2014] UKSC 9 at [42]. It would appear that the Caparo test is regarded as applicable in Nigeria: Okpabi v Royal Dutch Shell plc [2017] EWhC 89 (TCC) at [61], per Fraser J (appeal dismissed: [2018] EWCa Civ 191). 93 as a matter of generality, hong Kong has not overtly departed from English ......