Jalla & Ors v Royal Dutch Shell Plc & Ors

Under CPR r 19.6, representative proceedings require the representative and represented parties to have the same interest. Common issues of fact or law are insufficient where each claimant must separately prove damage, causation and the resulting relief, and may face individual defences. Individual claims do not automatically prevent representative proceedings, but they must remain subsidiary to a common issue that can fairly and honestly be tried for the class. The represented class must also be identifiable at every stage of the proceedings. The court struck out the representative elements of claims arising from an oil spill because they were, in substance, numerous individual claims requiring individual proof. The lead claimants’ personal claims continued.

The claimants, Nigerian individuals and communities, brought proceedings concerning the December 2011 Bonga oil spill. The claim was initially presented as a representative action under CPR r 19.6. Following an earlier limitation judgment, the claimants issued protective proceedings, abandoned most individualised damages claims in the present action, and relied on evidence suggesting that different claimants suffered damage at different times and locations.

The defendants applied to strike out the representative elements. By the hearing, they accepted that their limitation, nullity and anchor-claimant arguments could not be pursued on the new evidence. The remaining issues were whether the claimants had the same interest and whether the represented class was sufficiently ascertainable.

1. Representative action struck out. The represented claimants did not have the same interest as one another or as the lead claimants. The representative elements were struck out, while the personal claims of Mr Jalla and Mr Chujor continued.
2. CPR r 19.6 requires the statutory criterion of the same interest to be satisfied. The rule must be interpreted with regard to the overriding objective, but that objective cannot abrogate or replace the statutory test.
3. The required interest is a common interest based on a common grievance, with relief beneficial to all represented parties. Congruent causes of action are unnecessary if the claims are in effect the same for practical purposes. Individual relief is not automatically disqualifying, but it must be subsidiary to the common issue and must not transform the proceedings into a collection of individual claims sharing only common issues.
4. The claimants’ common issues included the occurrence and cause of the spill and any common duty owed by the defendants. They did not, however, establish a right to relief. Each claimant or community had to prove that Bonga oil caused damage at its particular location and that the damage justified the remediation sought. Those issues were integral to liability and relief, not subsidiary matters.
5. Individualised causation, damage and limitation defences were likely to arise. Their existence demonstrated that the proceedings were not beneficial to all represented parties in the relevant sense and could not fairly and honestly try the right for the class.
6. A represented class must be sufficiently defined so that membership can be determined at every stage, although its membership may fluctuate. The court would have held the class sufficiently identified because the individuals and communities were listed in schedules and authority to act was asserted. The possibility that some members might fail on damage or limitation did not itself make the class unascertained.
7. The estoppel arguments failed. There was no proved common assumption that all claimants had the same interest, and the defendants’ reliance on the same-interest objection was a natural response to the claimants’ changing case rather than unconscionable or abusive conduct.

The judgment followed an earlier limitation judgment, [2020] EWHC 459 (TCC), and a consequential directions judgment, [2020] EWHC 738 (TCC). This court determined the remaining strike-out issues at first instance.