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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jalla & Ors v Shell International Trading And Shipping Company & Anor [2021] EWCA Civ 63 (27 January 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/63.html Cite as: [2021] BLR 276, [2021] EWCA Civ 63, [2021] Env LR 26 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
MR JUSTICE STUART-SMITH
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NEWEY
and
LORD JUSTICE COULSON
____________________
HARRISON JALLA AND OTHERS |
Appellants/ Claimants |
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- and – |
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(1) SHELL INTERNATIONAL TRADING AND SHIPPING COMPANY (2) SHELL NIGERIA EXPLORATION AND PRODUCTION COMPANY LIMITED |
Respondents/Defendants |
____________________
Lord Goldsmith QC and Dr Conway Blake (instructed by Debevoise & Plimpton) for the Respondents
Hearing Dates: 1st & 2nd December 2020
____________________
Crown Copyright ©
LORD JUSTICE COULSON:
1 INTRODUCTION
2 THE FACTUAL BACKGROUND
i) The Parties
ii) The Spill
"32. The Claimants' case is that the MV Northia moored at the SPM on 19 December 2011 in order to load just under 1 million barrels of crude oil from the Bonga FPSO. Loading operations commenced that evening. Some time before 3 a.m. on 20 December, one of the flexible flowlines between the FPSO and the SPM ruptured and the spill started. During the loading operation the ship/shore volume differential was being determined on an hourly basis on board both the Bonga FPSO and the MV Northia, which the Claimants say accords with best practice. At about 3 a.m. and hourly thereafter an inexplicable difference was recorded between the amount transferred from the FPSO and the amount received by the MV Northia. The Claimants allege that this should have led to loading being stopped immediately as it was indicative of leakage between the FPSO and the vessel; but it was not. At about 7 a.m. an oil sheen was seen on the water by the crew of the vessel; but it was not until about 8 a.m. that the FPSO's loading master directed that loading should stop; and loading did not cease until 8.24 a.m. It is the essence of the complaint and case that the Claimants now wish to advance that legal responsibility for failure to prevent the continued spillage after 3 a.m. rests jointly with those operating the FPSO and the master and crew of the MV Northia and those responsible for their actions[1]. There is no doubt that SNEPCO was the operator of the FPSO. The question of STASCO's responsibility for the master and crew is much more contentious, as appears below."
iii) The Damage
"59. On the basis of the information before the Court, which I have summarised briefly above, it is safe to conclude without conducting a mini-trial that if the oil from the December 2011 Spill was responsible for the damage of which the Claimants complain, then oil reached the shoreline within a few days of 24 December 2011. Evidently, some parts of the shoreline included within the claims in this litigation were more remote than others from the Bonga FPSO and so landfall would not all have occurred at the same time. However, it is clear beyond reasonable argument to the contrary that actionable damage as alleged would have been suffered along most if not all of the affected shoreline within weeks rather than months of the December 2011 Spill. Not only is there actual evidence of oil reaching the shoreline at about the end of December 2011, but also no plausible mechanism has been suggested that would lead to the December 2011 Spill getting as close as it did to the shoreline by 24 December 2011 but then (assuming it did) causing such havoc over the allegedly affected shoreline only after some extended delay. This does not mean that all Claimants living and working along the shoreline were affected as soon as oil first hit land; but the substantial quantities of polluting oil alleged by the Claimants strongly support the conclusion that, where oil hit a particular stretch of the shoreline, many if not all Claimants living and working in that area would have suffered one or more of the effects of which they now complain within a short time. Even without conducting a mini-trial, therefore, the Court can be confident that actionable damage sufficient to start time running in negligence and/or nuisance occurred for many Claimants before 4 April 2012. This is supported primarily by the movement of the Bonga oil slick and the location and timing of the FUGRO samples as summarised in the Appendices to the Brookes Bell report and also by the other evidence summarised above.
60. Because of the almost complete lack of specificity or evidence about the migration of oil and the location of Claimants, it is not clear that all Claimants had suffered actionable damage by 4 April 2012. However, there is no material before the Court to indicate that the Defendants do not have a reasonably arguable case on limitation for the action as a whole, simply based upon the date of the December 2011 Spill, the short time it would have taken to get to the shoreline, and the months that remained before 4 April 2012 for actionable damage to occur over a wide area. The Claimants do not plead when they first suffered damage, either in general terms or specifically. Neither in the pleadings nor in evidence is there any analysis of the location, alleged date of damage, or mechanism of migration and heads of damage caused by migrating oil. The only assumption that can safely be made is that the further from the shoreline and the more remote in time it may ultimately be alleged that damage was first suffered, the greater will be the need for the case to be properly pleaded and for evidence, both general and specific, to sustain a claim that the individual Claimants suffered actionable damage by Bonga Oil. In these circumstances, apart from being confident that any Claimants who had not suffered damage by 4 April 2012 but who will ultimately prove that they suffered damage thereafter will have suffered damage progressively depending upon their distance from the coast and the existence of pathways for pollutants to follow, it is not possible to determine which Claimants suffered actionable damage when.
61. In summary, and without conducting a mini-trial of the issue:
i) It is clear that many Claimants will have suffered actionable damage before 4 April 2012;
ii) On current information the Defendants have a reasonably arguable case on limitation, though it is not certain that all Claimants suffered actionable damage caused by oil from the December 2011 Spill before 4 April 2012;
iii) If and to the extent that Claimants had not suffered actionable damage before 4 April 2012, it is arguable (and inherently plausible) that some may have suffered actionable damage between April 2012 and June 2013;
iv) On present information it is not possible to exclude the possibility that some Claimants may first have suffered actionable damage after June or even October/November 2013. There is, however, at present no reason to conclude that they did;
v) On present information it is not possible to reach any further conclusions for the purposes of these applications about who suffered damage when."
3 THE PROCEDURAL BACKGROUND
4 THE JUDGMENT AND THE ORDER
"62. The Claimants submit that "the ongoing and unremedied pollution from the December 2011 Spill that continues to blight their land is a continuing nuisance" so that a fresh cause of action accrues each day against STASCO as damage or interference with the use of land occurs. At one point it appeared that the Claimants might be arguing that there was also a continuing duty of care arising in negligence so that a new cause of action arose with every day that the pollution continued to blight the Claimants' land. If that was ever part of the argument, it was (rightly) not pursued. The Claimants do not claim that STASCO adopted the nuisance; rather, they assert that STASCO caused and then continued it.
63. In my judgment this issue having been raised by the Claimants, it can and should be resolved now for the reasons set out below: it does not need to be left over to a full trial.
64. There is no doubt that a nuisance can be a "continuing" one such that every fresh continuance may give rise to a fresh cause of action. The classic example of a continuing nuisance is provided by Battishill v Reed (1856) 18 CB 696 where the Defendant built (and subsequently kept in place) an erection higher than the Plaintiff's and, having removed tiles from the Plaintiff's eaves, had placed his own eaves so as to overhang the Plaintiff's premises. This nuisance was held to continue from day to day. "Continuing" a nuisance is also used in a different context to describe the circumstances in which responsibility for a nuisance will be imposed upon an occupier of land who, with knowledge or presumed knowledge of its existence, fails to take reasonable means to bring it to an end when he has ample time to do so. This usage is contrasted with "adopting" a nuisance by making use of an erection or artificial structure which constitutes the nuisance: see Sedleigh-Denfield v O'Callaghan [1940] AC 880. As Lord Atkin pointed out (at 896) there is a risk of imprecise language in referring to a state of affairs that has the potential to cause damage as itself being a nuisance. What is clear is that the cause of action in nuisance is dependent upon the occurrence of damage.
65. The Claimants rely upon Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 as authority for the proposition that failure to remediate a single event can be a continuing nuisance for this purpose. The first claimant was incorporated to provide the maintenance and service company for leaseholders in a block of flats, the freeholder being the Church Commissioners. In 1989 cracking appeared following a period of drought. In March 1990 engineers reported that the roots of a plane tree on the adjoining pavement had encroached under the property and that if the tree were not removed underpinning of the property would be necessary. In June 1990 the freeholders sold their freehold reversion to the second claimant, Flecksun, which was a wholly owned subsidiary of the first claimant. There was no assignment to Flecksun of any cause of action against the highway authority in respect of any damage caused by the tree. In August 1990 the highway authority was given the engineer's report and requested to remove the tree, which it declined to do. The first claimant then undertook the necessary underpinning works and the claimants sued the highway authority for the cost of those works, some £570,000. If the tree had been removed, the need to underpin would have been avoided and the cost of cracking to the building would have been £14,000. The House of Lords held that Flecksun was entitled to recover the costs of carrying out the underpinning works.
66. The central passage in the judgment of Lord Cooke (with whom the other members of the House agreed) is at [33]:
"Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000. On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench." [Emphasis added]
67. This reasoning does not assist the Claimants. The highlighted passage shows the determining feature of the case, namely that the continuing presence of the tree roots gave rise to a continuing need for underpinning which would have been avoided if the highway authority had abated the (continuing) nuisance at any time by removing the tree (and, hence, the effect of its roots). The highway authority became responsible for that continuing state of affairs on being notified of the problem and when it declined to abate the nuisance. That is analogous to the person who builds and leaves a structure on or overhanging his neighbour's land – the classic "continuing" nuisance in this usage. It is quite different from the "normal" case where there is a release (be it of water, gas, smells, or other detrimental things) and that release causes damage or interferes with user of land. In the latter case, there is one occurrence of nuisance for which all damages must be claimed at once even if the consequences of the nuisance persist. So, for example, if in Sedleigh-Denfield the escape of water had formed a lake which caused damage to the plaintiff's land over a period of weeks, that would have been one occurrence of a legal nuisance despite the extent and duration of the consequential damage, for which all damages should be claimed at once. In the present case there was one escape of oil, for which the Claimants seek to impose liability upon STASCO. It is alleged that the escape has caused the inundation of the Claimants' land and other heads of damage. Nuisance by polluting oil is no different in principle from nuisance by escape of water, gas smells or other polluting agents. It is in that respect a "normal" case and there is no basis, either in authority or in principle based upon concepts of reasonableness or control to describe the nuisance as "continuing" in the sense contended for by the Claimants or as considered in Delaware Mansions. To treat the present escape as giving rise to a continuing nuisance in the sense asserted by the Claimants would, in my judgment, be a major and unwarranted extension of principle.
68. For these reasons, the limitation period should not be extended by reference to the concept of a continuing nuisance. The Claimants' causes of action accrued when each Claimant first suffered sufficient damage for the purposes of a claim in nuisance."
"273. The conclusions I have reached in this judgment have far-reaching implications for the future conduct of this action. The major outstanding problem is how to cope with the possibility that the limitation period may not have expired for some (and possibly many) Claimants when they took the critical procedural steps that are the subject of this judgment. That problem raises questions about the structure of this "representative" action and how to determine whether there is a substantial cohort of Claimants who should be allowed to proceed forward to trial. Of one thing I am certain: it would not be acceptable to proceed to a full trial of this action in circumstances where my rulings in this judgment seem inevitably to mean that some (and possibly many) Claimants are bound to fail for reasons associated with limitation. It is also to be remembered that, while I have necessarily assumed in this judgment that the relevant period of limitation under Nigerian law is 6 years, there is a live issue (which is entirely dependent on expert evidence) about whether the proper period is 5 years.
274. I have not heard argument on consequential orders, but the effect of my conclusions on the various issues appears at present to be as follows:
i) If the relevant period of limitation for a given Claimant had not expired on 4 April 2018, the amendment of the Claim Form on that date pursuant to CPR r.17.1 by which STASCO was joined to the action was and is effective;
ii) If the relevant period of limitation for a given Claimant had expired on 4 April 2018, the amendment on that date by which STASCO was purportedly joined was (or should be treated as) a nullity and ineffective. Claimants falling within this category should cease to be Claimants in this action;
iii) If and to the extent that the joinder of STASCO on 4 April 2018 was effective, the claim against STASCO cannot proceed on the basis of an allegation that STASCO was responsible for the operation of the MV Northia except to the extent that the Claimants' 3 October 2019 application to amend the Claim Form succeeds. As to that:
a) If the relevant period of limitation for a given Claimant had expired by the date of handing down this judgment (which should be taken as the date of the order on the application to amend the Claim Form) the application to amend the Claim Form should fail. Those Claimants' claims against STASCO should fail as there is no other reasonable basis for a claim against STASCO disclosed by the Particulars of Claim or the draft Amended Particulars of Claim;
b) If the relevant period of limitation for a given Claimant had not expired by the date of handing down this judgment the application to amend the Claim Form should succeed;
c) Any permission to amend the Claim Form as and from the date of handing down this judgment should make clear that it does not apply to those Claimants for whom the relevant period of limitation has expired. Whether this is done by adopting a mechanism such as was used in Blue Tropic or by some other means should not matter;
iv) The application to amend the Particulars of Claim should succeed in respect of those Claimants for whom the relevant period of limitation has not expired at the date of handing down this judgment and in respect of whom the Claimants' 3 October 2019 application to amend the Claim Form succeeds. Those for whom the relevant period of limitation has expired at the date of handing down this judgment will fail because permission to amend the Claim Form to permit a claim in relation to STASCO's responsibility for the MV Northia has failed. They therefore should not proceed to trial and the question of amending the Particulars of Claim against them becomes moot;
v) The jurisdiction of the English court over SNEPCO in these proceedings is dependent upon the presence of STASCO as the anchor defendant. Therefore, to the extent that Claimants are bound to fail against STASCO because of the conclusions I have reached in this judgment, the English court should decline jurisdiction over SNEPCO. Whether this is done by declaration or by setting aside service on SNEPCO in relation to those Claimants may be the subject of further submissions."
5 THE ISSUE ON APPEAL AND THE RELEVANT CONTEXT
6 THE LAW
"This conception is implicit in all the decisions which impose liability only where the defendant has "caused or continued" the nuisance. We may eliminate in this case "caused": what is the meaning of "continued"? In the context in which it is used "continued" must indicate mere passive continuance. If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc., causing a nuisance.
Continuing in this sense and causing are the same thing. It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is if he knows that it is operating offensively, is able to prevent it and omits to prevent it he is permitting the nuisance to continue, in other words he is continuing it."
That was the central issue in the case. It was emphatically not the sort of continuing nuisance with which this appeal is concerned.
"The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances."
And Lord Porter said:
"However this may be, the true view is, I think, that the occupier of land is liable for a nuisance existing on his property to the extent that he can reasonably abate it, even though he neither created it nor received any benefit from it. It is enough if he permitted it to continue after he knew or ought to have known of its existence. To this extent, but to no greater extent, he must be proved to have adopted the act of the creator of the nuisance...
But the respondents had, as I have indicated, or ought to have had knowledge of the danger, and could have prevented the danger if they had acted reasonably. For this I think they were liable - not because they were negligent, though it may be that they were, but for nuisance because with knowledge that a state of things existed which might at any time give rise to a nuisance they took no steps to remedy that state of affairs."
"However there remains for consideration a point adumbrated in the course of argument, which is relevant to liability in nuisance as well as under the rule in Rylands v. Fletcher. It appears that, in the present case, pools of neat P.C.E. are still in existence at the base of the chalk aquifer beneath E.C.L.'s premises, and the escape of dissolved phase P.C.E. from E.C.L.'s land is continuing to the present day. On this basis it can be argued that, since it has become known that P.C.E., if it escapes, is capable of causing damage by rendering water available at boreholes unsaleable for domestic purposes, E.C.L. could be held liable, in nuisance or under the rule in Rylands v. Fletcher, in respect of damage caused by the continuing escape of P.C.E. from its land occurring at any time after such damage had become foreseeable by E.C.L.
For my part, I do not consider that such an argument is well founded. Here we are faced with a situation where the substance in question, P.C.E., has so travelled down through the drift and the chalk aquifer beneath E.C.L.'s premises that it has passed beyond the control of E.C.L. To impose strict liability on E.C.L. in these circumstances, either as the creator of a nuisance or under the rule in Rylands v. Fletcher, on the ground that it has subsequently become reasonably foreseeable that the P.C.E. may, if it escapes, cause damage, appears to me to go beyond the scope of the regimes imposed under either of these two related heads of liability. This is because when E.C.L. created the conditions which have ultimately led to the present state of affairs - whether by bringing the P.C.E. in question onto its land, or by retaining it there, or by using it in its tanning process - it could not possibly have foreseen that damage of the type now complained of might be caused thereby. Indeed, long before the relevant legislation came into force, the P.C.E. had become irretrievably lost in the ground below. In such circumstances, I do not consider that E.C.L. should be under any greater liability than that imposed for negligence. At best, if the case is regarded as one of nuisance, it should be treated no differently from, for example, the case of the landslip in Leakey v. National Trust for Places of Historic Interest or National Beauty [1980] QB 485."
"In my opinion the English approach as disclosed by the authorities serves to emphasise the point that we are concerned here essentially with the law of property. The function of the tort, in the context of private nuisance, is to control the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land.
The tort of negligence is also, in a very real sense, concerned with the relationship between neighbours. But, as can be seen clearly since the development of this branch of the law in Donoghue v. Stevenson [1932] AC 562, the answer to the question "who in law is my neighbour?" is a different one from that which would be given in the context of property law…"
"33. Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] 1 QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000 (joint statement of facts and issues, paragraph 23). On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench."
7 WAS THIS A CASE OF CONTINUING NUISANCE?
i) Continuing Causes of Action
ii) A Single or One-Off Event
iii) Delaware Mansions
iv) The Equation of Nuisance with Damage or Harm
v) Abatement and Remediation
"In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather it is that, by virtue of his occupation, an owner usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequence of his failure to exercise that control so as to remove the hazard."
vi) The Flexibility of the Modern Law of Nuisance
vii) The Particular Properties of Oil
viii) The Appellants' Pleading
"55. The heads of loss and damage for which the Claimants claim damages are set out at [56] – [64] of the Particulars of Claim as follows:
"Fishing/Fish Trading
56. There has been a dramatic reduction in various species of fish, especially the 'Bonga fish'. Fishing, periwinkle picking and shell fish harvesting industries have been devastated, perhaps irreparably. To the extent that any fish or aquatic life has survived, the majority are contaminated by crude oil, toxic and unfit for human consumption. The effect on subsistence and commercial fishing has been devastating.
Farm land
57. It is averred that the Claimants' farmland has been directly impacted by permeating oil from the spills and crop yields have diminished due to soil and environmental toxicity.
Drinking water
58. The oil spills have caused pollution to the environment and contaminated the ground and drinking water forcing the Claimants to find alternative sources of water at significant additional cost disproportionately negatively impacting their modest incomes.
Mangroves
59. The wood from the mangrove forest which supports the Claimants' domestic energy needs is now covered in oil and unsuitable for cooking fuel and other domestic tasks due to the odour omitted on burning. The Claimants are therefore having to find and utilise more expensive alternative sources of energy.
60. Mangrove forest is a natural habitat and ecosystem supporting the large populations of shell-fish and fish. Many hectares of mangrove forest and swamp has been heavily negatively impacted. The Claimants' incomes are diminished and sources of food destroyed.
61. It is averred that the damage to the mangrove forests and swamps will have a long term detrimental effect on the Claimants' economic activities and quality of life.
Shrines
62. Various traditional shrines and objects of traditional religious veneration have been destroyed by the oil spills which has caused the Claimants great distress, shock, fear and anxiety.
Landowners
63. The Claimants have suffered diminution in the value of their land as a result of the spills.
Associated industry
64. Industry associated with fishing and farming has been devastated by the effects of the spill. The significant reduction in fishing activity has reduced demand for services relating to the fishing industry including the sale of fishing paraphernalia, mending of fishing nets and traps, hiring of boats, maintenance of boats, the maintenance and preservation of fish pools and so on. This list does not purport to be an exhaustive list of all those whose businesses and lives have been blighted by the oil spills."
ix) Summary
8 OTHER MATTERS
9 CONCLUSIONS
LORD JUSTICE NEWEY:
LORD JUSTICE LEWISON: