The Bodo Community & Ors v The Shell Petroleum Development Company of Nigeria Ltd

In group litigation involving claims governed by Nigerian law, preliminary-issues directions limiting expert evidence must be respected. Additional reports served shortly before the hearing are inadmissible where they exceed the permitted expert evidence and would deprive the opposing party of a fair opportunity to respond. Reports prepared by non-legal experts cannot be introduced indirectly through a permitted legal expert merely to illuminate policy or factual matters. Comparative legal materials may assist as persuasive authority or historical background, but opinions expressed by academics on the laws of other jurisdictions are not themselves admissible evidence of Nigerian law. Broad factual assumptions accepted for preliminary issues do not require expert reports where the issues concern whether pleaded types of loss are legally recoverable in principle.

The claimants, comprising the Bodo Community and more than 11,000 individual inhabitants, brought claims for compensation arising from oil spillages in the Niger Delta. The claims included damages for shock, fear, annoyance, inconvenience, discomfort, illness, distress and anxiety, under Nigerian law.

The court had ordered preliminary issues before the main trial and permitted one Nigerian-law expert for each party. The claimants’ expert sought to rely on a comparative legal report and to attach three further reports addressing the effects of oil spills, psychiatric symptoms and land valuation. The central questions were whether those materials could be admitted for the preliminary-issues hearing and whether they could properly be used through the legal expert’s supplementary report.

1. Reports excluded. The reports of Dr Fentiman, Professor Wessely and Mr Akujuru were not admissible at the preliminary-issues hearing. The order permitted one expert on Nigerian law for each party, and the parties had proceeded on that basis. The reports were served only about three working weeks before the hearing, leaving the defendant no proper opportunity to respond. Their admission would therefore be unfair and inconsistent with the fair conduct of the trial.
2. The reports could not be admitted indirectly as merely illuminatory material or policy assistance. If they were relevant to the preliminary issues, they should have been served with the first report and permission should have been sought earlier.
3. The British Institute of International and Comparative Law report could not be relied upon for the opinions expressed by its academic authors about other jurisdictions. Comparative authorities, academic materials and legislation could, where relevant, be referred to as persuasive authority or historical background, but the report did not expand the permission for expert evidence of Nigerian law.
4. For the preliminary issues, the court could assume that individual claimants might establish that actionable oil spillages caused pleaded forms of distress or physical and psychological difficulty. The issue was whether such losses were recoverable in principle under Nigerian law, rather than whether the individuals had actually suffered them. Detailed factual or medical reports were therefore unnecessary for that purpose.
5. The court declined to prescribe the permissible contents of the Nigerian-law expert’s supplementary report in advance. Any admissibility challenges would be ruled upon if necessary at the preliminary-issues trial. The claimants nevertheless confirmed that the three additional reports would not be relied upon or exhibited.

This was a first-instance case-management and admissibility ruling in advance of the preliminary-issues hearing. The judgment records that the proceedings had been transferred to the Technology and Construction Court and that a case-management order had been made on 2 December 2013.