Jalla and another v Shell International Trading and Shipping Company Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Burrows,Lord Reed,Lord Briggs,Lord Kitchin,Lord Sales |
| Judgment Date | 10 May 2023 |
| Neutral Citation | [2023] UKSC 16 |
| Court | Supreme Court |
Lord Reed, President
Lord Briggs
Lord Kitchin
Lord Sales
Lord Burrows
Appellants
Jonathan Seitler KC
Alice Hawker
Stuart Cribb
(Instructed by RBL Law Ltd)
Respondents
Lord Goldsmith KC
Dr Conway Blake
Tom Cornell
(Instructed by Debevoise & Plimpton LLP (London))
Heard on 29 and 30 March 2023
Lord Burrows ( with whom Lord Reed, Lord Briggs, Lord Kitchin and Lord Sales agree):
This appeal concerns the tort of private nuisance in the context of a major oil spill which occurred off the coast of Nigeria in December 2011. The question at issue is whether there is a continuing private nuisance and hence a continuing cause of action. This matters because the date of accrual of the cause of action is the date from which the limitation period starts to run. Under English law (as laid down by section 2 of the Limitation Act 1980) the limitation period is six years although the limitation period may be five years under Nigerian law which, it is common ground, is the applicable law. The claimants submit that there is a continuing cause of action because there is a continuing nuisance so that the limitation period runs afresh from day to day.
In general terms, the tort of private nuisance is committed where the defendant's activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant's land: see, eg, Lawrence v Fen Tigers Ltd (“ Lawrence”) [2014] UKSC 13, [2014] AC 822, para 3 (per Lord Neuberger); Fearn v Board of Trustees of the Tate Gallery (“ Fearn”) [2023] UKSC 4, [2023] 2 WLR 339, paras 18 – 20 (per Lord Leggatt); Christian Witting, Street on Torts (16 th edn, 2021) p 424; Clerk & Lindsell on Torts (23 rd edn, 2020) para 19-01; John Murphy, The Law of Nuisance (2010) para 1.05; Donal Nolan, “‘A Tort Against Land’: Private Nuisance as a Property Tort” in Rights and Private Law (eds Donal Nolan and Andrew Robertson, 2012) pp 459, 463 – 465. Nearly always the undue interference with the use and enjoyment of the claimant's land will be caused by an activity or state of affairs on the defendant's land so that the tort is often described as one dealing with the respective rights of neighbouring landowners or occupiers: see, eg, Sedleigh-Denfield v O'Callaghan (“ Sedleigh-Denfield”) [1940] AC 880, 903 (per Lord Wright). But the creator of the nuisance can be sued whether or not that person still has (or perhaps ever had) any interest in the land from which the nuisance emanates (see para 44 below). Moreover, it is being assumed for the purposes of this appeal that the tort of private nuisance may be committed where the nuisance emanates from the sea. It is also being assumed that the tort of private nuisance may be committed by a single one-off event such as the oil spill in this case. I shall say more about those two assumptions at the end of this judgment (see paras 47 – 49 below).
As with the tort of negligence, and in contrast to the tort of trespass to land, the tort of private nuisance is actionable only on proof of damage and is not actionable per se (see Clerk & Lindsell on Torts para 19-02). This requirement is satisfied for private nuisance by establishing the undue interference with the use and enjoyment of the land. That includes physical damage to the land itself and damage to buildings or vegetation growing on the land. But commonly there will be an undue interference with the use and enjoyment of land – as by the impact of noise or smell or smoke or vibrations or, as in Fearn, being overlooked – even though there is no physical damage to the land or buildings or vegetation.
It is submitted by the claimants that, in this case, there is a continuing nuisance, and hence a continuing cause of action, for as long as the undue interference with the claimants' land is continuing. They argue that, on the assumption that the oil from the oil spill is still present on the land of the claimants and has not been removed or cleaned up, there is a continuing cause of action for the tort of private nuisance that is accruing afresh from day to day.
That argument of the claimants, which is being dealt with as a discrete preliminary matter prior to trial, was rejected by Stuart-Smith J: [2020] EWHC 459 (TCC) paras 62 – 68. The appeal against that decision was dismissed by the Court of Appeal (Lewison, Newey and Coulson LJJ) with the leading judgment being given by Coulson LJ: [2021] EWCA Civ 63. The claimants now appeal to the Supreme Court.
The claim has been brought in respect of alleged oil pollution of land, including waterways, caused by an oil spill which occurred off the coast of Nigeria on 20 December 2011 (“the Bonga Spill”). The leak which gave rise to the Bonga Spill occurred during a cargo operation at an offshore installation in the Bonga oil field. The Bonga oil field is located approximately 120 km off the coast of Nigeria. The infrastructure and facilities at the Bonga oil field include a Floating Production Storage and Offloading unit (“FPSO”), which is linked to a Single Point Mooring buoy (“SPM”) 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 tankers. The Bonga Spill resulted from a rupture in one of the flexible flowlines connecting the FPSO and the SPM. The leak occurred overnight during a cargo operation when crude oil was being transferred from the Bonga FPSO through the SPM and onwards onto a waiting oil tanker, MV Northia. The cargo operation commenced on 19 December 2011, and the leak began at an unknown time prior to 3:00am on the morning of 20 December 2011. The cargo operation and the leaking were stopped after about six hours.
As a result of the Bonga Spill, it is estimated that the equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The claimants allege that, following its initial escape, the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline where they claim it has had a devastating impact on two affected States in the Niger Delta – Delta and Bayelsa States. The claimants allege that the oil has not been removed or cleaned up. In contrast, the defendants maintain that the Bonga Spill was successfully contained and dispersed offshore such that it did not impact the shoreline. Nevertheless, they accept that, for the purposes of determining the limitation issue in this appeal, it should be assumed that some quantity of oil from the Bonga Spill reached the Nigerian Atlantic shoreline. The parties have further agreed that, for the purposes of determining the legal issue in this appeal (and in line with Stuart-Smith J's finding, on the basis of the information before him, at para 59 of his judgment), it is to be assumed that oil reached the Nigerian Atlantic shoreline within weeks rather than months of 20 December 2011.
The claimants, Mr Jalla and Mr Chujor, are two Nigerian citizens. They bring a claim in the tort of private nuisance for undue interference with the use and enjoyment of land owned by them which they say has been impacted by the Bonga Spill. Although there has been a dispute as to whether they were also validly bringing these proceedings as a representative action on behalf of 27,830 other individuals, it is accepted that, for the purposes of this appeal, the only claimants are Mr Jalla and Mr Chujor and that this is not a representative action.
The defendants are Shell International Trading and Shipping Co Ltd (“STASCO”) and Shell Nigeria Exploration and Production Co Ltd (“SNEPCO”). Both are companies within the Shell group of companies. The former is an English company domiciled in London. It is alleged that STASCO is directly or vicariously liable for the operation of the MV Northia. It has been sued in England, as an English domiciled company, pursuant to article 4 of the Recast Brussels I Regulation (Regulation (EU) No 1215/2012). SNEPCO is a Nigerian company which owned and operated the FPSO, the SPM and the ruptured flowline that connected the two. SNEPCO is alleged to be liable as the operator of the FPSO at the relevant time. It was served out of the jurisdiction on the basis that it was a necessary or proper party to the claim against STASCO.
The claimants issued their claim form on 13 December 2017. This was just under six years after the spill occurred on 20 December 2011. In April 2018, over six years after the spill, the claimants purported to amend their claim form including changing one of the parties being sued from Shell International Ltd (a company which they had initially sued) to STASCO. In April, June and October 2019, they issued a series of applications to amend their claim form and particulars of claim. The defendants submitted that, as the amendments were being sought after the expiry of the limitation period, the claimants had to satisfy the requirements of CPR rr 17.4 and/or 19.5 (now 19.6) and that they could not do so.
It was in this context, of determining whether the amendments were being sought outside the limitation period, that the question of a continuing nuisance, with which this appeal is concerned, arose. The claimants submitted that, because there was a continuing nuisance, their applications to amend the claim form and particulars of claim were within the limitation period.
It is important to stress that this appeal is concerned only with the question whether on the facts (including those assumed by the parties for the purposes of this...
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