Strike out hearing in oil spill representative action

In a previous post on Jalla & Ors v Royal Dutch Shell Plc & Ors [2020] EWHC 459 (TCC), a case concerning an oil spill off the coast of Nigeria, we noted that, unusually, the litigation had been brought as a representative action under CPR Part 19.

This was commented on by the judge, who noted that there could be serious issues in respect of the requirement for all the claimants to have suffered the “same damage” (based on the Court of Appeal’s restrictive approach in Lloyd v Google LLC [2019] EWCA Civ 1599 at [73]–[81]).

These comments have now been seized upon by the Defendant, who has suggested that the claim should be struck out on a number of grounds, including that “the action is not a “representative action” because there is insufficient identity of interest between the Claimants”.

The judge in a short judgment has directed that the application for strike out will be dealt with at a hearing at the end of May 2020.

A new source of civil law rights in claims against multinationals?

In Nevsun Resources Ltd. v. Araya, 2020 SCC 5, the Supreme Court of Canada held that peremptory norms of international law could in principle be enforced against a corporate entity in a civil claim for damages. The decision – which can properly be described as groundbreaking – is well worth reading in full. Max Archer and James Beeton of 12 King’s Bench Walk consider its implications for cross-border litigation involving corporate entities in the courts of England and Wales. Continue reading “A new source of civil law rights in claims against multinationals?”

Vedanta applied in Nigerian oil spill case

There are some interesting points in the recent decision of Stuart-Smith J in Jalla & Ors v Royal Dutch Shell Plc & Ors [2020] EWHC 459 (TCC).

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

In general terms, the Claimants allege that responsibility for the 2011 spill lies with companies forming part of the Shell group. The Defendants deny liability on the basis, amongst other things, that no oil from the December 2011 spill reached the Claimants’ coastline or caused the damage that the Claimants allege. Continue reading “Vedanta applied in Nigerian oil spill case”

Court of Appeal: Sierra Leonean mining company not liable for actions of local police force

In this blog, Christopher Fleming of 12 King’s Bench Walk considers the recent decision in Kalma & Ors v African Minerals Ltd & Ors [2020] EWCA Civ 144. The Court of Appeal dismissed an appeal by the claimants, inhabitants of a mining town in Sierra Leone, against the dismissal of their claims against the owners and operators of the largest iron ore mine in the region for compensation for the violent acts of the local police force. It was agreed that the law of Sierra Leone could be treated as identical to that of England and Wales. The appeal dealt with such issues as the law of common design and the principles of ‘pure omissions’. The lengthy (and excellent) first instance judgment of Turner J can be found here. Continue reading “Court of Appeal: Sierra Leonean mining company not liable for actions of local police force”

Permission to Appeal refused in Kenya Emergency Group Litigation

On Tuesday the Court of Appeal refused permission to appeal the decision of Stewart J in the first judgment on the merits in the Kenya Emergency Group Litigation (Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB)). We wrote about the earlier decision here.

The permission to appeal decision is available on BAILII under the heading Kimathi and Others v Foreign & Commonwealth Office [2018] EWCA Civ 2213. In summary:

  • The judge had concluded that there was no good reason for the delay in bringing the action. But he went on to find that, even if there had been a good reason, on balance the case still could not be fairly tried. His conclusion in that respect could not be impugned [9].
  • There was no need for the judge to identify a specific date by which the action should have been brought in order to deal with prejudice to the defendant. What was crucial was to ‘consider the position as it is now’ [14].
  • The judge was justified in finding that the loss of documents and potential witnesses over time inevitably and seriously affected the cogency of the evidence available [16].
  • The fact that the claim was brought against a background of allegations of abuse requiring scrutiny or investigation did not affect the core issue of prejudice [17].
  • A final allegation that the judge had not been even-handed was simply unjustified [18].

Ultimately, the court determined that the claimant ‘cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible’.

The decision provides a harsh reminder of the difficulty of appealing exercises of a judge’s discretion under s. 33 Limitation Act 1980. The potentially significant implications of this decision for the viability of the remainder of the thousands of claims in the Kenya Emergency Group Litigation remain to be seen.

First Judgment on the Merits in the Kenya Emergency Group Litigation (TC34)

An interesting aspect of Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB) is how thoroughly it confirms that the past is a foreign country. Britain’s past comprises many foreign countries, once part of its Empire. The Kimathi litigation (also known as the ‘Mau Mau litigation’, after the Mau Mau rebellion that was instrumental in Kenya’s independence movement) has come probably at the only time it could come in these postcolonial days, but it has come too late to be suitable for the forensic process that is civil litigation.

Members of 12 King’s Bench Walk’s International & Travel team have been instructed at various points throughout the course of this litigation by the Claimants, the FCO, and Intervening Parties. This post considers the implications of Stewart J’s first judgment on the merits and assesses the suitability of the civil litigation process for determination of the issues raised. Continue reading “First Judgment on the Merits in the Kenya Emergency Group Litigation (TC34)”