Jalla & Ors v Royal Dutch Shell Plc & Ors

For limitation purposes, a single oil spill causing continuing consequential damage ordinarily constitutes one nuisance, not a continuing nuisance, unless the damaging state of affairs itself continues and can be abated.

Deliberate concealment requires concealment of a fact essential to the cause of action, rather than evidence which merely strengthens the claim. It must be attributable to the defendant against whom limitation is invoked.

A proposed amendment substituting a different defendant after expiry of limitation is governed by CPR r. 19.5 where the claimant intended to sue the substituted party, rather than merely misnaming it. A new claim is permissible only where its essential facts are the same or substantially the same as those already in issue.

Jurisdiction under Article 4 of the Recast Brussels Regulation cannot be challenged on forum non conveniens grounds. A stay under Article 34 requires necessity for the proper administration of justice, which was not established.

The claim arose from the December 2011 Bonga oil spill off the Nigerian coast. More than 27,500 individuals and 457 communities alleged damage to land, waterways, fishing, farming and related interests.

The proceedings were issued in December 2017 against Royal Dutch Shell Plc, Shell International Limited and Shell Nigeria Exploration and Production Company Limited. The Claim Form was later amended to name Shell International Trading and Shipping Company Limited (“STASCO”) instead of Shell International Limited. Royal Dutch Shell Plc was subsequently discontinued.

The court determined applications concerning limitation, amendments, substitution of parties, jurisdiction, service out of the jurisdiction, a stay under Article 34 of the Recast Brussels Regulation, and alleged non-disclosure when permission to serve Shell Nigeria Exploration and Production Company Limited was obtained.

1. Limitation and damage. The court could conclude without a mini-trial that many claimants suffered actionable damage before 4 April 2012, while the available material did not establish when every claimant first suffered damage. The defendants therefore had a reasonably arguable limitation case, but the position could differ between claimants.
2. Continuing nuisance. A nuisance may be continuing where the damaging state of affairs persists and can be abated, as in Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321. A single escape of oil is different. The escape constitutes one occurrence of nuisance, although its consequences continue. Limitation therefore runs from the occurrence of actionable damage and is not extended by continuing nuisance.
3. Deliberate concealment. The FUGRO report was evidence which might enhance the claim, not a fact essential to the existence of the cause of action. The claimants had always alleged that Bonga oil reached their land and could plead their case without the report. There was also no evidential basis for deliberate concealment by STASCO or a duty on STASCO to disclose the report. The limitation extension was rejected.
4. Estoppel by convention. Silence, inactivity and failure to raise limitation, absent a duty to speak, did not establish a shared and communicated assumption. The claimants also failed to show detriment. The alleged estoppel therefore failed.
5. STASCO substitution. The application was properly governed by CPR r. 19.5(3)(a), because the claimants intended to sue Shell International Limited and sought to substitute STASCO, rather than correcting a misnomer. The claimants failed to prove that Shell International Limited had been named in mistake for STASCO. The proposed substitution would therefore be ineffective for claims already statute-barred.
6. Claims concerning the vessel. The original Claim Form, which focused on operation and control of the FPSO, did not encompass a claim based on the involvement of the MV Northia. Such a claim introduced materially different facts concerning the vessel, its management, the crew and the duties said to arise from those matters. It was a new claim and did not arise from the same or substantially the same facts as the original claim.
7. Amendment of Particulars of Claim. The proposed amendments against STASCO introduced new causes of action based on its alleged status as Technical Manager, Company, Operator and Document Holder, together with international maritime provisions. The court could not fairly determine the existence or scope of any duty of care or vicarious liability on interim evidence and refused to resolve those unsettled issues summarily. The amendments against SNEPCO, by contrast, substantially retained the essential allegation that SNEPCO controlled the Bonga facility and could be permitted, subject to limitation and jurisdiction.
8. Jurisdiction and service out. Article 4(1) of the Recast Brussels Regulation conferred jurisdiction over STASCO as an English-domiciled defendant. The claim against STASCO involved a real issue to be tried, and SNEPCO was a necessary or proper party with a real prospect of success. England was the proper forum for the combined claims, particularly because the claim against STASCO was to continue and a single inquiry was feasible.
9. Stay. Although the Nigerian proceedings were related and a judgment from Nigeria would be capable of recognition and enforcement, a stay under Article 34 was not necessary for the proper administration of justice. The stay would be indeterminate, the proceedings could not be consolidated, STASCO’s responsibility would not be determined in most Nigerian actions, and the risk of irreconcilable judgments would remain.
10. Full and frank disclosure. The application to serve SNEPCO was ex parte as against SNEPCO. However, the alleged non-disclosures concerning limitation and Nigerian proceedings were not material in a way that would have altered the order. The application to set aside service was rejected.
11. Consequences. The effectiveness of the amendments and the jurisdiction over SNEPCO depended on whether individual claimants remained within the applicable limitation period. Further directions were required concerning the representative structure, preliminary limitation issues and which claimants could proceed.