J v S
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell DBE,Mrs Justice O'Farrell |
| Judgment Date | 14 March 2024 |
| Neutral Citation | [2024] EWHC 578 (TCC) |
| Court | King's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2017-000383 |
[2024] EWHC 578 (TCC)
Mrs Justice O'Farrell DBE
Case No: HT-2017-000383
Case No: HT-2020-000143
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Oba Nsugbe KC (instructed by RBL Law Limited) for the Claimants
Robert Marven KC, Dr Conway Blake, Tom Cornell & Mark McCloskey (instructed by Debevoise & Plimpton) for the Defendants
Nicholas Bacon KC (instructed by RBL Law Limited) for RBL Law Limited
Hearing dates: 26 th & 27 th October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Thursday 14 th March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The following applications are before the court:
i) the defendants' application for costs of and occasioned by the issue whether, as a matter of Nigerian law, RBL Law Limited (“RBL”) had the requisite authority to act for the claimants in protective proceedings, claim HT-2020-000143 (“Jalla 2”);
ii) the defendants' application for disclosure against RBL, issued on 25 June 2021 and now pursued following judgments in the substantive proceedings of both claims.
The claimants and RBL are separately represented for the purpose of this hearing. The application for costs is resisted in whole or in part by the claimants. The applications for costs and disclosure are resisted by RBL.
The claims
The underlying dispute arose out of an oil spill that occurred in the Bonga oilfield off the coast of Nigeria on 20 December 2011 (“the Bonga Spill”). The Bonga Spill emanated from an offshore floating production, storage and off-loading facility (“the Bonga FPSO”), located approximately 120 kilometres off the Nigerian coastline of Bayelsa State and Delta State.
The Bonga Spill was caused by a rupture of one of the pipelines connecting the Bonga FPSO to a single point mooring system (“SPM”), both of which were operated and controlled by one of the defendants, Shell Nigeria Exploration and Production Company Limited (“SNEPCo”), a Nigerian company regulated by the Nigerian governmental authorities. The technical manager of the vessel, the MV Northia, that was loading from the Bonga FPSO at the time of the spill was another defendant, Shell International Trading and Shipping Company Limited, (“STASCO”), a company domiciled and registered in the UK.
On 13 December 2017 (almost six years after the Bonga Spill), Mr Harrison Jalla and Mr Abel Chujor issued proceedings in claim HT-2017-000383 (“Jalla 1”) against SNEPCo and others, purporting to act on their own behalf and/or in a representative capacity on behalf of 27,830 claimants and 457 communities in the Niger Delta, and seeking damages and/or compensation for pollution and environmental degradation caused by the Bonga Spill.
On 4 April 2018 the claimants amended the claim form to add STASCO as an anchor defendant and on 2 March 2020 material allegations against STASCO were made in the Jalla 1 proceedings.
On 20 April 2020, 27,830 individual claimants (mostly, but not all, the same individuals who were named in Jalla 1), purporting to act on their own behalf and as representatives of 479 communities in the Niger Delta, issued protective proceedings in Jalla 2 against STASCO and SNEPCo, seeking damages and/or compensation for pollution and environmental degradation caused by the Bonga Spill.
There have been a number of judgments in these protracted proceedings, including the following:
i) On 2 March 2020, Stuart-Smith J (as he then was) issued a judgment reported at [2020] EWHC 459 (“the Jurisdiction Judgment”), in which the court determined a number of applications but was unable to dispose of a jurisdiction challenge in Jalla 1, pending resolution of the issue of limitation, which turned on the date on which actionable damage occurred in respect of each claimant and community.
ii) As part of the Jurisdiction Judgment, the court determined that the claims for damage caused by the Bonga Spill could not constitute a continuing nuisance until any pollution was remedied, so as to extend the limitation period and defeat the defendants' limitation defence. The claimants each had a single claim in nuisance in respect of any damage caused by the Bonga Spill, such cause of action accruing when their land and/or water supplies were first impacted by the oil (“the Continuing Nuisance Judgment”).
iii) On 14 August 2020 Stuart-Smith J issued a further judgment reported at [2020] EWHC 2211 (“the Strike-Out Judgment”), in which the court struck out the representative action in Jalla 1, leaving Mr Jalla and Mr Chujor as the only remaining claimants in Jalla 1.
iv) 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] EWCA Civ 1389 (“the Strike-Out Appeal”).
vi) On 28 February 2023, this court issued a judgment reported at [2023] EWHC 424 (“the Date of Damage Judgment”), including findings that: (a) any Bonga oil would have reached the shoreline between 25 and 28 December 2011; (b) the applicable limitation period for the claims under Nigerian Law was five (as opposed to six) years; and (c) the claimants failed to establish that the date on which any oil from the Bonga Spill first impacted any of the communities was 2014 or later.
vii) On 10 May 2023, the Supreme Court handed down judgment reported at [2023] UKSC 16, dismissing the claimants' appeal and holding that there was no continuing nuisance in this case. The Bonga Spill was a one-off event or isolated escape; the cause of action accrued and was complete once the claimants' land had been affected by the oil.
The cumulative effect of the above judgments was that the claims in Jalla 1 and Jalla 2 were statute-barred for limitation. Accordingly, by order dated 27 June 2023, the claimants' claims against the defendants in Jalla 1 and Jalla 2 were dismissed.
Background to the authority issue
Initially, between about 2015 and July 2020, the claimants in Jalla 1 and Jalla 2 were represented by Johnson and Steller (“J&S”). J&S relied on a signed letter of authority from each individual claimant as providing it with authority to conduct the proceedings. The process of collecting the letters of authority and verifying identity was explained in the witness statement of Mr Nicholas Ekhorutomwen, solicitor of J&S, dated 7 June 2019. A steering committee was appointed with delegated authority to provide instructions to J&S and act as a point of communication in respect of the proceedings.
Funding for the proceedings was provided by way of a Damages Based Agreement (“DBA”) dated 8 May 2017 (varied by deed dated 18 October 2019), entered into by J&S and Mr Jalla, acting on behalf of the individual claimants in Jalla 1. Under the DBA, if the claim failed, the Jalla claimants would have no liability to pay any legal fees or disbursements; if the claim succeeded, the legal fees and disbursements would be funded through a percentage deduction from the damages.
From November 2018, pursuant to an agreement between RBL and J&S (“the Collaboration Agreement”) dated 27 March 2019 (as amended by further agreement dated 21 April 2020), RBL provided litigation services to J&S up to a value of £2.3 million. Further, RBL provided a working capital facility of £2 million for the purpose of the proceedings, which J&S was entitled to draw down in tranches. Under the Collaboration Agreement, J&S agreed to pay to RBL £1 million within 30 days of the agreement. In the event that the claim succeeded and J&S received the DBA payment, J&S agreed to pay to RBL the balance of £1.3 million for legal services, repayment of the loan facility and 40% of the DBA payment received.
As early as October 2018, the issue of authority was first raised by Debevoise & Plimpton (“D&P”) with J&S. This was followed by months of correspondence on the issue. J&S produced a number of sample letters of authority, but the validity of the letters was disputed by D&P. Those issues were never resolved and on 15 July 2020 J&S ceased to trade.
On 26 August 2020 Rosenblatt, now RBL, filed and served notices of change as the solicitors acting for the claimants in Jalla 1 and Jalla 2.
On 24 September 2020 RBL entered into a DBA with (i) Mr Jalla and Mr Chujor; and (ii) the steering committee members. The individual claimants were not signatories to the DBA but Messrs Jalla and Chujor were stated to have authority to act on their behalf and RBL stated its intention to secure confirmatory instructions from them. Provision was made for any new claimants to execute a Deed of...
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