Nigeria oil spill group action founders on limitation

The Court of Appeal yesterday handed down a fascinating judgment in Jalla & Ors v Shell International Trading And Shipping Company & Anor [2021] EWCA Civ 63, which deals with the boundaries of the modern law of nuisance and with the concept of “continuing causes of action” for the purposes of limitation.

We previously blogged on various issues decided by the trial judge (including whether the claim could be brought as a “representative action”) here and here.

This was a claim relating to an oil spill in 2011 on behalf of a very large number of individuals (in excess of 27,500) who lived by or in the hinterland of a stretch of the coast of Nigeria that spanned Bayelsa State and Delta State. In addition, the claim was brought on behalf of 457 villages and communities that were alleged to have been affected by the oil spill.

In general terms, the Claimants alleged that responsibility for the 2011 spill lay with companies forming part of the Shell group. The Defendants denied liability.

The issue on the appeal was summed up by Coulson LJ:

The issue that arises on this appeal is whether or not the appellants have a cause of action for a continuing nuisance, which would defeat the respondents’ limitation defence, or whether, as the judge found, they have a single claim in nuisance which, for many if not most of the appellants, is likely to be statute-barred.

In Williams v Network Rail Infrastructure Limited [2018] EWCA Civ 1514, Sir Terence Etherton MR summarised a number of the general principles of the modern law of nuisance, starting at [39] of his judgment. Coulson LJ helpfully summarised the principles:

These were, first, that a private nuisance was a violation of real property rights [40]. Secondly, that although nuisance was sometimes broken down into different categories, those were merely examples of a violation of property rights [41]. He warned of the difficulties with rigid categorisation, because those would not easily accommodate possible examples of nuisance in new social conditions. Thirdly, he said that the proposition that damage was always an essential requirement of the cause of action of nuisance had to be treated with considerable caution [42]. He said that the concept of damage in this context “is a highly elastic one”. He added that physical damage was not necessary to complete the cause of action [43]. Fourthly, he said that nuisance could be caused by inaction or omission as well as by some positive activity [44]. Finally, he said at [45] that the broad unifying principle in this area of the law was reasonableness between neighbours (real or figurative) and cited Delaware Mansions in support of that proposition.

With that preamble, Coulson LJ emphasised that this was an appeal on limitation. He was unimpressed by appeals to the “justice” of the case:

This appeal is not a question of anybody “getting off”; on the contrary, the judge found an arguable claim on the merits. It is instead a question of the operation of the applicable limitation period. That might be regarded as an artificial cut-off, particularly by those who may have failed to comply with the relevant statutory period, but it remains the law.

At [52]–[54], Coulson LJ considered the nature of “continuing” causes of action for limitation purposes. These passages have broader significance – there is, it is submitted, clear relevance for limitation in relation to torts causing cumulative injuries (such as noise-induced hearing loss).

A cause of action in tort is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law. Thus any claim in negligence in this case, arising out of the event when the oil leaked into the sea on 20 December 2011, gave rise to a single cause of action, which, as a matter of law, was completed when damage occurred. As the judge found, that was likely to have been in the weeks after 20 December, when the oil first hit the appellants’ land.

A continuing cause of action is more unusual. In Hull v Chard Union [1894] 1 Ch 293, Lindley LJ described a continuing cause of action as “a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.” Whilst that was a case about a long-forgotten rule of procedure, the underlying notion, that a continuing cause of action will usually involve a repetition of the acts or omissions which gave rise to the original cause of action, continues to make logical sense in the twenty-first century.

The paradigm example of a continuing cause of action in nuisance was the encroachment of tree roots into neighbouring land which undermine the neighbour’s house. The landowner’s failure to abate the nuisance by dealing with the tree is a continuing one.

By contrast, the oil spill case was not about a series of continuing acts or omissions – it was about a “single event, a catastrophic one-off leak”. It was wrong to equate nuisance with physical damage or harm resulting from the continued presence of oil after the leak had been fixed:

There is no authority which supports the contention that, in a case like this, there is a fresh cause of action every day that the oil remained on the land. It would be a radical departure from the case law to say that a continuing nuisance does not require a continuing event or hazard, but merely continuing harm after the single event has ended, or the hazard has been removed.

Nor was it correct to suggest that an actionable nuisance persisted until the oil had been cleaned up:

There is no authority for these propositions. As noted above, nuisance continues until it is abated (see, for example, Sedleigh-Denfield and Delaware Mansions). But abatement of the nuisance means dealing with the state of affairs that created the nuisance; it does not involve any obligation to remediate the damage caused by the nuisance.

That was different from saying that the Defendants were liable for the consequences of the nuisance:

Of course, none of that means that the respondents were not liable in law for the consequences of the oil spill. Limitation and jurisdiction difficulties aside, if the appellants’ case was well-founded, the respondents would be liable in damages, which might well include the cost of an effective clean-up operation. But they were not liable to carry out the clean-up themselves: that was beyond their control.

In the circumstances, the trial judge had been right to find that the cause of action accrued when the oil first struck the Claimants’ land. This meant that many of the claims were likely to be statute-barred.

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