The Bodo Community & Ors v CW Law Solicitors

On an interim injunction application, the court should avoid making final findings on serious, fact-dependent allegations where the evidence is disputed, the issues have been raised at short notice and no proper trial process has occurred. The court may continue protective orders where necessary to preserve the position and protect the administration of related litigation. A waiver obtained under a competing settlement arrangement may be declared ineffective in England and Wales in relation to the litigation before the court. The order may require disclosure of instructions, identity documents and original waivers, while leaving disputed allegations and possible contempt proceedings for further evidence and, if necessary, trial.

The claimants were numerous members of the Bodo community involved in English proceedings concerning oil spills in the Niger Delta. Shell had admitted liability in principle, while disputes remained concerning the relevant period and the amount of oil discharged. Leigh Day acted for many claimants.

The defendant, CW Law Solicitors, and Egbegi & Co. had entered into a settlement arrangement with Shell concerning the same spills. The arrangement contemplated waivers, releases and discontinuance of an earlier English action. The claimants alleged that some persons included in the settlement had already instructed Leigh Day, had not authorised the settlement, or had signed forged or otherwise invalid documents. Earlier injunctions had restrained steps towards settlement and required disclosure. The return hearing concerned continuation and refinement of those orders, and possible non-compliance with them.

1. Interim relief continued. The basic injunction restraining CW Law from taking steps in relation to settlement of claims arising from oil pollution in the Bodo Creeks was continued by agreement. The court also declared that any waiver signed under the 12 August 2014 agreement between Shell, CW Law and Egbegi & Co. should have no effect in the courts of England and Wales in relation to the Bonny oil pipeline litigation.
2. The court declined to make final findings on the allegations of forgery, bribery, threats, improper inducements or deliberate misrepresentation. Those allegations were serious and fact-dependent. They had been raised, or particularised in the form relied upon, only shortly before the hearing. The evidence was disputed and consisted principally of written witness statements. A proper determination required a trial at which the witnesses could be assessed and the allegations fully pleaded.
3. The court treated the position concerning CW Law’s capacity with caution. Although CW Law maintained that it had acted merely as Egbegi & Co.’s agent, its position was potentially inconsistent with the settlement agreement. An assurance was nevertheless given that any agency acceptance was within the authority CW Law believed it possessed.
4. Further procedural safeguards were ordered. CW Law had to provide records of instructions, identity-card information and documents for persons whom it claimed to represent and who might be covered by the settlement. It also had to clarify whether it continued to represent any claimants in the English litigation and, when notified, provide originals of waivers selected by Leigh Day.
5. The court declined to determine contempt immediately. Late disclosure of releases was not, on the material then available, likely to constitute actionable contempt. There was, however, a case to answer concerning releases apparently signed or dated after the earlier injunction. The claimants were required to identify the alleged non-compliances relied upon for committal proceedings, after which CW Law could file further evidence.
6. The court emphasised that claimants wishing to continue with Leigh Day should be able to do so, while those not represented by or wishing to leave Leigh Day should remain free to pursue settlement. The paramount consideration was the interests of the claimants and the proper conduct of the English litigation.

This was a first-instance return hearing concerning earlier interim orders made by Stuart-Smith J. The judgment also referred to the court’s earlier substantive decision, The Bodo Community and Others v Shell Petroleum Development Company of Nigeria Limited [2014] EWHC 1973 (TCC), but no appeal from that decision was determined here.