King Felix Sunday Bebor Berebon & Ors v The Shell Petroleum Development Company of Nigeria Ltd

An application to lift a stay is governed by the overriding objective and the requirements of justice. The applicant bears the burden of showing that lifting the stay would be appropriate. The court should consider the proportionate use of judicial resources, without imposing a presumption that exceptional circumstances are required.

Rules concerning abuse of process, unreasonable grounds for continuing a claim and summary judgment provide useful guidance, but do not exhaust the discretion. Evidence that claimants or those they represent obstructed remedial works may be relevant and admissible, particularly where the claim seeks a mandatory injunction or damages in lieu. A claimant cannot obtain the lifting of a stay by relying on circumstances caused by its own misconduct.

The claim arose from oil spills in Bodo Creek, Nigeria. Liability had been admitted and the claims had largely been settled for £55 million. The remaining clean-up claim, seeking a mandatory injunction or damages in lieu, was stayed under an agreement and consent orders, with liberty to apply for restoration.

The claimants applied to lift the stay. The defendant challenged the claimants’ title and capacity, the authority of their solicitors, and the effect of alleged violence, obstruction and Nigerian proceedings intended to prevent remediation. The court also considered whether the application should be adjourned and whether the proceedings should be struck out.

1. Validity and adjournment. The court adjourned the application to lift the stay because unresolved questions remained concerning the deaths and status of existing claimants, the proposed substitution of claimants, and Leigh Day’s authority to act. Those issues required proper analysis of recently served evidence before the validity of the application could be determined.
2. Applicable test. The stay should be lifted if that accords with the overriding objective under CPR 1.1 and with the requirements of justice, applying the approach in Jameel v Dow Jones & Co Inc [2005] EWCA Civ. 75. The burden lies on the party seeking to lift the stay. The test should not be loaded by presumptions or a requirement to show exceptional circumstances. The court may nevertheless use the considerations reflected in CPR 3.4 and CPR 24.2 as helpful guidance.
3. Obstruction evidence. Evidence of alleged obstruction was relevant and admissible. It would be artificial to decide whether to lift a stay, imposed to allow remediation to occur, without considering why the remediation had not progressed. The court could assess contemporaneous documents, Nigerian injunction proceedings and competing explanations. Physical violence could not be condoned, whatever the explanation.
4. Strike out and case management. The expense or complexity of the litigation was not itself a ground for striking out. Proper costs-management orders could address future expense. Issues concerning foreign act of state, title to foreign land and the jurisdiction to grant an injunction might require preliminary determination, but were not grounds for striking out at this stage. The parties remained obliged to cooperate with the Bodo Mediation Initiative, and the proceedings could not properly be used as a tactical threat.

• High Court (Technology and Construction Court): Akenhead J determined preliminary issues in [2014] EWHC 1973 (TCC). The remaining clean-up claim was then stayed by agreement and consent orders. Coulson J adjourned the application to lift the stay for determination of validity and substitution issues.