English High Court rules on preliminary issues in Jalla Nigerian oil spill claim
On 28 February 2023, the English High Court handed down its judgment on preliminary issues in the ongoing second Jalla claim against Shell relating to what is alleged to have been the largest oil spill in the Niger Delta region for over twenty years. The first Jalla claim was struck out in August 2020, a decision which was subsequently upheld by the Court of Appeal on 29 September 2021 (see our previous article on the first instance decision). Whereas the first Jalla claim was brought by two individuals as representatives of the Bonga community, the second Jalla proceedings were brought by 27,830 individuals on their own behalf and as representatives of 479 Nigerian communities.
In its recent decision in the second Jalla proceedings, the High Court ruled on which (if any) actionable damage the claimants suffered as a result of the oil spill. This was intended to help determine whether any of the claims against the anchor defendant, Shell International Trading and Shipping Company Limited (STASCO), were statute-barred for limitation and, therefore, whether the High Court had jurisdiction to determine the substantive claims.
The court considered the following preliminary issues, each of which is discussed in further detail below:
- The applicable limitation period under Nigerian law.
- The extent of the oil spill and the dates on which it impacted on the relevant communities for the first time.
- Whether the claimants' solicitors have authority to act for the claimants in the proceedings.
The claim relates to an oil spill which occurred on 29 December 2011 in the Bonga oilfield located approximately 120 kilometres off the coast of Nigeria. The spill was caused by a rupture of one of the pipelines connecting an offshore facility to a single point mooring system, both of which were operated and controlled by one of the defendants, Shell Nigeria Exploration and Production Company Limited (a Nigerian company regulated by the Nigerian governmental authorities). The other defendant, STASCO (a company domiciled and registered in the UK) was the technical manager of the vessel that was loading from the offshore facility.
The claim was brought by 27,830 claimants on their own behalf and in a representative capacity on behalf of 479 communities in Nigeria. The claimants allege that oil from the spill devastated the shoreline, causing serious and extensive damage to the land, water supplies and to the fishing waters in and around the coastline.
The claimants sought compensation for pollution and environmental degradation caused by the oil spill which allegedly continued to cause ongoing damage to the land and fishing waters around the villages.
One of the issues determined by the court was when damage occurred for the purposes of calculating the limitation period. The claimants’ case was that the oil from the Bonga Spill first struck the communities of Ogheye-Uton, Abe-Bateren, Tonbrapade-Gbene and Isuku-Gbene in 2014 and 2015. The defendants’ position was that the claimants had failed to provide any cogent factual or expert evidence showing that they first suffered actionable damage two-and-a-half years after the spill (so the limitation period for any pollution suffered must have expired). Moreover, it was the defendants’ case that oil from the spill was cleaned up and any pollution suffered by the communities was more likely to have been caused by oil from other spills or illegal refining in the relevant areas.
The court agreed with the defendants that, even assuming that oil from the spill had reached the Nigerian shoreline, the claimants had failed to establish their case that Bonga oil had become trapped; remobilised years later; migrated upstream and inland; and impacted any of the communities for the first time on the alleged dates in 2014 and 2015.
It was common ground that Nigerian law applied to the claims made in these proceedings, including with respect to the limitation period. There was an issue between the parties as to whether the applicable limitation period was five or six years. In the light of the court’s findings about the date of damage, however, it was clear that none of the claims were made against STASCO within any applicable limitation period even if it was six years. However, for completeness, the court dealt with the issue briefly and held that the applicable limitation period under Nigerian Law was five years.
Authority to act
The defendants challenged the authority of the claimants’ solicitors to act for the claimants in the proceedings as a matter of Nigerian law on the basis that, among other things, most of the claimants had not given individual consent for these proceedings to be brought in their names.
The court held that as a mater of Nigerian law, the claimants’ solicitors did have authority to act for the claimants in the proceedings, to the extent that:
- individual claimants had given their consent; or
- the claims were community claims in respect of communal land rights; but
- not otherwise, in respect of individual claims or private individual rights.
The proceedings remain subject to an appeal before the UK Supreme Court about whether, for limitation purposes, the spill should be regarded as a continuing nuisance until it was cleaned up. Subject to that point, the result of the present judgment is that the claim against the anchor defendant is time barred and the court will not have jurisdiction to hear the claim.
In the event that the court did take jurisdiction, the defendants have also reserved their rights to challenge the representative action in these second Jalla proceedings.
Unless the Supreme Court saves the claim, however, it appears that it will not proceed in the English courts. The decisions in these Jalla proceedings so far show that, despite the courts’ recent willingness to allow mass tort claims to continue in the jurisdiction (for example, see our recent blog post about a Colombian oil spill claim), those claims still face many challenges in the form of technical and procedural hurdles.