|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> The Bodo Community & Ors v Shell Petroleum Development Company of Nigeria Ltd  EWHC 2170 (TCC) (04 July 2014)
Cite as:  EWHC 2170 (TCC)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| THE BODO COMMUNITY and OTHERS
|- and -
|SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
Charles Gibson QC and Toby Riley-Smith (instructed by Hogan Lovells International LLP) for the Defendant
Hearing date: 20 June 2014
Crown Copyright ©
Mr Justice Akenhead:
i) Issue 1: Whether the Claimants are only entitled to claim compensation in respect of the 2008 spills under the Oil Pipelines Act 1990 ("OPA 1990")?
ii) Issue 2: Whether SPDC can be liable under Section 11(5)(b) of the OPA 1990 to pay just compensation for damage caused by oil from its pipelines that has been released as the result of illegal bunkering and/or illegal refining?
iii) Issue 3: Whether compensation under the following pleaded heads of loss is recoverable by individual claimants under the OPA: shock and fear; annoyance, inconvenience, discomfort and illness; distress and anxiety; aggravated damages; exemplary damages?
iv) Issue 4: Whether the amount of just compensation recoverable under the OPA in relation to damage arising from oil spills (save in respect of the claims for loss of earnings) will be assessed in accordance with the diminution in value of the land and/or interest in land which have been damaged and/or the loss of the amenity value of that land or interests therein and/or consequential loss? If not, what alternative measure should be used?
v) Issue 5: Whether awards of just compensation under the OPA, or awards of general damages at common law, should be valued by reference to previous awards made by the English Courts or by reference to the value of land and/or the cost of living in Nigeria?
vi) Issue 6: Whether the Court lacks jurisdiction to try some or all of the claims (as pleaded) on behalf of the Bodo Community and the claims by the individuals under the OPA 1990 and/or in nuisance and/or in negligence and/or Rylands v Fletcher by reason of Section 30 of the Civil Jurisdiction and Judgments Act 1982?
vii) Issue 7: Whether the damage - both pecuniary and non-pecuniary - alleged to have been suffered by the claimants, in both the individual and community claim, are recoverable in claims (whether brought individually or by representative action) for damages in public nuisance?
viii) Issue 8: Whether interest is recoverable on awards of just compensation and/or damages at common law for past losses?
"6…but the implementation of orders of this kind or indeed for any kind of division of costs in relation to specific issues can involve the parties and the costs judge in extensive further litigation in the course of the detailed assessment, during which the whole history of the action is scrutinised in order to determine which part of any expenditure related to which issue. In the present case, Master O'Hare was sensibly asked by the parties to make certain preliminary rulings as to the principles on which the division of the common costs should be approached. But I am told that this process has so far generated tens of thousands of pounds in additional costs and that the hearing of the detailed assessment has been allocated a further four days of court time. There is therefore every prospect that the length of time taken in the assessment of costs will exceed the length of the trial itself and add vastly to the costs of the litigation in general. These matters need, I think, to be borne firmly in mind by a trial judge who is asked to make a complicated order for costs. There is much to be said for the application of the general rule that costs should follow the event and for keeping to the simple formula of orders for a stated proportion of the costs or a stated amount of costs in cases where recognition of a limited degree of success by one or other party is called for."
Mr Justice Jackson (as he then was) counselled against it in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd  EWHC 2280 (TCC) when he said:
"72. From this review of authority I derive the following eight principles.
(i) In commercial litigation where each party has claims and asserts that a balance is owing in its own favour, the party which ends up receiving payment should generally be characterised as the overall winner of the entire action.
(ii) In considering how to exercise its discretion the court should take as its starting point the general rule that the successful party is entitled to an order for costs.
(iii) The judge must then consider what departures are required from that starting point, having regard to all the circumstances of the case.
(iv) Where the circumstances of the case require an issue-based costs order, that is what the judge should make. However, the judge should hesitate before doing so, because of the practical difficulties which this causes and because of the steer given by rule 44.3(7).(v) In many cases the judge can and should reflect the relative success of the parties on different issues by making a proportionate costs order…
(viii) In assessing a proportionate costs order the judge should consider what costs are referable to each issue and what costs are common to several issues. It will often be reasonable for the overall winner to recover not only the costs specific to the issues which he has won but also the common costs."