King Felix Sunday Bebor Berebon & Others v The Shell Petroleum Development Company of Nigeria Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 04 July 2017 |
| Neutral Citation | [2017] EWHC 1579 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 04 July 2017 |
| Docket Number | Case No: HT-2013-000028 |
[2017] EWHC 1579 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Coulson
Case No: HT-2013-000028
Mr Richard Hermer QC and Mr Chris Buttler (instructed by Leigh Day) for the Claimants
Mr Geraint Webb QC and Mr Adam Heppinstall (instructed by Hogan Lovells International LLP) for the Defendant
Hearing Date: 16 June 2017
INTRODUCTION
These proceedings concern land in and around Bodo Creek, in Nigeria, which was the subject of two oil spills in 2008 and 2009. Prior to the commencement of the proceedings, the defendant admitted liability in respect of those spills under the Nigerian Oil Pipelines Act 1990 ("the OPA"). The 18 claimants brought claims on a representative basis. They originally sought damages and a mandatory injunction requiring the defendant to clean up the area, or damages in lieu of an injunction. One of the many issues that now arises concerns the capacity of those 18 claimants to pursue the proceedings.
On 20 June 2014, Akenhead J handed down a judgment which resolved a variety of preliminary issues between the parties ( [2014] EWHC 1973 (TCC)). Thereafter, in October 2014, the parties reached an agreement, referred to as the Narrowing Agreement, pursuant to which a settlement agreement was outlined for all claims, save in respect of the clean-up claim (i.e. the mandatory injunction or the reasonable cost of remedial works in lieu). Following a mediation, all but the clean-up claim was settled by an agreed payment by the defendant of £55 million. That final settlement was reflected in a Consent Order approved by Akenhead J in January 2015.
The clean-up claim was stayed for two years and was to be struck out in October 2016, although the claimants had liberty to apply to restore that claim before that date. The stay was to allow the remedial scheme to be put in hand under the auspices of the Bodo Mediation Initiative ("BMI"). The evidence is that steps were taken to commence the remediation scheme but, for a variety of reasons, no substantive remedial works have yet taken place. Some of the reasons for that are outlined in Section 5 below. In consequence, on 13 October 2016, the claimants applied to this court to lift the stay.
The defendant opposes that application. Amongst the many points taken by the defendant, the two most significant for present purposes are that:
(a) The claimants do not have the necessary title or capacity to bring these proceedings and/or Leigh Day did not have the authority to apply to lift the stay or to act for the claimants, and that therefore the application to lift the stay is a nullity. That would have the effect, says the defendant, of leaving the clean-up claim struck out pursuant to the previous Consent Orders.
(b) The claimants and/or those whom they purport to represent have (by violence and threats, and by issuing repeated injunction applications/claims in the courts in Nigeria aimed at stopping the remedial works) prevented the clean-up from going ahead. In those circumstances, the defendant says that the continuation of the clean-up claim for an injunction to require them to do those works – or damages in lieu – would be an abuse of the process of the court. In consequence, the defendant says that the stay should not be lifted.
Unhappily, the application to lift the stay, and the defendant's opposition to that application, have generated seven lever arch files of material and a total costs bill said to be in the order of £280,000. Worse still, it was the defendant's principal submission that, after all that, the application to lift the stay should be adjourned.
I have endeavoured to deal with as many of the issues between the parties as I can, following the full day's hearing on 16 June 2017 and the huge costs said to have been incurred. Thus, in Section 2, I set out an outline chronology. In Section 3, I deal with the arguments concerned with the validity of the claimants' application to lift the stay, and whether or not that application should be adjourned. In Section 4, I deal as a matter of principle with the test to be applied on the application to lift the stay. In Section 5, I consider the issues of principle relating to the evidence that goes to the only realistic ground of opposition to that application on the merits, namely the defendant's case that those whom the claimants represent have prevented the remediation works from going ahead, such that any continuation of the clean-up claim would be an abuse of process. In Section 6, I deal much more briefly with issues relating to the defendant's application to strike out. In Section 7, I set out the way forward in this case, taking into account my earlier conclusions of principle.
OUTLINE CHRONOLOGY
Both parties were anxious to draw my attention to material that predated Akenhead J's judgment of June 2014 and the subsequent agreements between the parties. I have read the extensive evidence dealing with those events, but I consider them to be of peripheral relevance to the issues before me, and I do not set them out here.
The Narrowing Agreement was dated 22 October 2014. Recital E removed a variety of issues from the litigation including the volume of oil released in the spills and allegations in respect of the defendant's conduct prior to, during, and since the spills. Recitals F and G were in the following terms:
"F. In circumstances in which the issues of clean up and remediation of the Bodo Creek (as defined in accordance with paragraph 1 below) are the subject of an independent mediation led by the former Dutch Ambassador to Nigeria, the Claimants' Clean Up Claims as defined in paragraph 16 below shall be stayed and shall be struck out if not restored in accordance with paragraph 16.
G. The parties enter into and will implement this Agreement in a spirit of cooperation and good faith in the expectation that it will reduce the work that is required for the trial set down for May 2015 (the "trial") and, if possible, facilitate an early resolution of those Claims. This Agreement shall be interpreted and enforced so as to ensure that the Parties abide by the intentions and objectives, set out herein, upon which this Agreement is based."
The critical clauses for present purposes are clauses 16 and 17. They provided:
" Claim for injunctive relief or damages in lieu of clean up and remediation
16. The Claimants shall not pursue their claims in relation to clean up and remediation of the Bodo Creek and in particular their claims for injunctive relief or damages in lieu of the same (the " Clean Up Claims") and the Clean Up Claims shall be stayed until further order and shall be struck out automatically at 4:00pm on the date two calendar years from the date of this Agreement (the "Strike Out Date"). This Agreement is subject to the Claimants being at liberty to apply to the Court to restore the Clean Up Claims for trial by 4:00pm on the date seven days prior to the Strike Out Date.
17. Save for paragraph 16 above and this paragraph 17 the Clean Up Claims shall not be subject to this Agreement."
As noted above, the Narrowing Agreement then set out an agreement by the defendant to pay substantial compensation to the claimants in respect of their other claims.
There was a 'Consent Order To Go With The Narrowing Agreement', dated 31 October 2014, but not sealed until 19 December 2014. Clause 6 of that Consent Order provided as follows:
"That part of the New Bodo Community Claim relating to clean up and remediation (namely paragraphs 34 to 39 and 65 to 67 of the re-amended Particulars of Claim dated 10 July 2014 and paragraphs 21 to 27 and the first three lines of paragraph 65(1) of the Schedule of Loss dated 14 February 2014 in the New Bodo Community Claim) will be stayed until further order and shall be struck out automatically at 4:00pm on the date two calendar years from the date of the Narrowing Agreement (the "Strike Out Date"); the Claimants being at liberty to apply to the Court to restore for trial those parts of the New Bodo Community Claim that are pleaded in those paragraphs, any such an application to be issued and served by 4:00pm on the date seven days prior to the Strike Out Date." (Emphasis supplied)
Following a mediation, there was a further Consent Order dated 19 January 2015 dealing with the £55 million to be paid by the defendant as damages based on its admission of liability to pay compensation under the OPA.
It is clear from the evidence that the driving force behind the Narrowing Agreement and Consent Orders noted above was the BMI, originally called the Bodo Mediation Process ("BMP"). The BMI involved not only the defendant and 'the Bodo Community' (sometimes described as a party to certain agreements, but not a legal entity in its own right and a deleted claimant in these proceedings), but also various other stakeholders, including the Rivers State Sustainable Development Agency, the National Coalition on Gas Flaring and Oil Spills in the Niger Delta, the Embassy of the Kingdom of the Netherlands, and the United Nations Environment Programme. Nigerian Federal and State Government Institutions were also involved in the BMI, including the National Petroleum Investment Management Services, the National Oil Spill Response and Detection Agency, and the Rivers State Ministry of Environment. Each of these stakeholders agreed to operate together under the umbrella of the BMI. The BMI had its own chairman, called regular meetings which were minuted, and issued regular reports.
Pursuant to a Memorandum of Understanding ("MoU") made on 30 April 2015,...
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