On 29 September 2021, the Court of Appeal handed down judgment in Jalla & Another v Shell International Trading and Shipping Company & Another [2021] EWCA Civ 1389, an appeal concerning the requirement that there be “the same interest in a claim” in order for a representative action to be validly brought.
In December 2017, the Claimants, Mr Jalla and Mr Chujor, brought claims in the English High Court 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 Claimants purported to claim not only on their own behalf, but also on behalf of what they described as the ‘Bonga Community’, comprising 27,830 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.
Following jurisdictional hearings in September and October 2019, the Defendants applied in March 2020 to strike out the representative aspects of the proceedings, on the basis that the requirement in CPR r 19.6 that the Claimants share “the same interest” in the claim as the represented individuals and communities was not satisfied. In response, the Claimants indicated that they no longer intended to seek individualised and individually assessed claims to damages on behalf of the Bonga Community in these proceedings. Instead, by analogy with the decision of the Court of Appeal in Lloyd v Google [2020] Q.B. 747, they sought to limit the claims to what they called the remediation relief – an injunction requiring the Defendants to clean-up the area polluted by the Bonga spill or damages in lieu – and contended that “the same interest” requirement was, therefore, satisfied.
At first instance, Stuart-Smith J (as he then was) ruled that the Defendants were correct. He held that the Claimants and the Bonga Community did not share the same interest in the claim, and struck out the representative claims. A copy of the first instance judgment of Stuart-Smith J dated 14 August 2020 can be found here.
The Claimants appealed, contending that the Learned Judge had erred on two grounds: (1) The proceedings were materially indistinguishable from Lloyd v Google; and (2) The need to prove that each represented claimant had suffered damage as a result of the Bonga Spill did not mean that the Claimants and the Bonga community could not have “the same interest” in the claim.
The Court of Appeal granted permission to appeal in writing but dismissed the appeal (Coulson LJ giving lead judgment; Lewison and Green LJJ concurring), holding that “this was not and could never have been a representative action”. Unlike in Lloyd v Google, none of the purposes of a representative action could be achieved in this case. Even if the claims were limited to the remediation relief, issues such as limitation, causation, and whether the damage to each parcel of land justified the remedial scheme claimed for, would have to be assessed on an individual basis. In a representative action, the represented parties’ claims must stand or fall on the determination of the claims of the representatives, and that was not possible here. A copy of the Court of Appeal judgment can be found here.
Graham Dunning QC, Stuart Cribb, and Wei Jian Chan, instructed by Tania Macleod of Rosenblatt, acted for the Claimants/Appellants at the hearing before the Court of Appeal on 7 and 8 July 2021. They were previously brought in by the Claimants/Appellants’ then legal representatives for the jurisdictional hearings in September and October 2019, and acted for them at the strikeout hearing before Stuart-Smith J on 28 May 2020.
