Continuing nuisance and limitation in the context of jurisdictional issues

10 February, 2021

On 27 January 2021, the Court of Appeal handed down judgment in Jalla & Others v Shell International Trading and Shipping Company & Others [2021] EWCA Civ 63, an appeal concerning issues of continuing nuisance and limitation.

The Claimants—comprising 27,800 individuals and 457 communities who live and work by or in the hinterland of a stretch of Nigerian coast spanning Bayelsa State and Delta State—brought a claim against various entities in the Royal Dutch Shell group of companies in respect of an oil spill that occurred in the offshore Bonga oil field in late 2011 before the English High Court. The Bonga oil spill was one of the largest oil spills in Nigerian oil exploration history.

The Defendants contested the jurisdiction of the English High Court over this claim, raising limitation arguments in the light of certain amendments made by the Claimants after the expiry of the 6-years from the date of the Bonga spill.

At first instance, having rejected the Defendants’ submission that there was no real issue to be tried on the merits of the claim, Stuart-Smith J (as he then was) ruled that, subject to questions of limitation, the English Court had jurisdiction to try the claims. A copy of the first instance judgment of Stuart-Smith J can be found here.

The issue arising on this appeal was whether or not the Claimants had a cause of action for a continuing nuisance, which would defeat the Defendants’ limitation defence to their claims in nuisance.

The Court of Appeal (Coulson LJ giving lead judgment; Newey and Lewison LJJ concurring) held that what was within the Defendants’ control was the ability to eliminate the hazard which constituted the nuisance, namely the flexible flowline at the fixed offshore oil installation leaking oil into the sea, and that the Defendants had abated the nuisance by turning off the pipeline that had caused the spill. A copy of the Court of Appeal judgment can be found here.

The Court of Appeal rejected arguments that the Defendants were liable for a continuing cause of action while the crude oil remained on the Claimants’ land until a successful remediation/ clean-up had been achieved, and that the presence of oil (which lingers and does not dissipate without a proper clean-up operation) gave rise to a continuing nuisance. The Claimants’ appeal was dismissed.

Graham Dunning QC, Stuart Cribb, and Wei Jian Chan, instructed by Tania Macleod of Rosenblatt, acted for the  Claimants/Appellants.