Jalla & Ors v Royal Dutch Shell Plc & Ors

A consequential case-management hearing may address an issue closely connected with an earlier judgment, but fairness may require the issue to be adjourned where the affected party has insufficient time to prepare. Any pleading on accrual of damage must be supported by evidence and state the case with sufficient particularity to enable the opposing party to respond. The court may require information about legal representation and funding where it is relevant to costs and settlement. Permission to appeal may be refused where the governing principles are clear and no other compelling reason exists.

This was a consequential hearing following the court’s main judgment, [2020] EWHC 459 (TCC), concerning claims arising from the December 2011 Bonga oil spill. The defendants sought strike-out of the proceedings, relying on alleged limitation defects, deficiencies in the representative nature of the action and the proposed status of the lead claimants. They also sought costs and information about the claimants’ legal representation and funding.

The claimants opposed immediate strike-out, sought permission to appeal the conclusion that continuing nuisance did not extend time, and proposed further pleadings and case-management directions. The central issues were whether the strike-out application should be heard immediately, what evidence and pleading should be required on the date of damage, and what consequential orders should be made.

1. Strike-out application. It would be unfair to require the claimants to meet the strike-out application fully at the hearing because the defendants’ case had only recently been developed and the claimants had insufficient time to prepare. The application was nevertheless sufficiently connected with the main judgment to justify early determination. It was therefore adjourned, with directions for a draft notice, responsive evidence and skeleton arguments, and a hearing during the week of 25 May 2020.
2. Date of damage. The claimants were directed to serve a “Date of Damage Pleading” supported by the lay and expert evidence on which they relied. The pleading had to identify when the relevant damage occurred with sufficient particularity to enable the defendants to know and defend the case advanced. Evidence from every claimant was not required where groups living in the same communities might share relevant dates.
3. Permission to appeal. Permission to appeal the conclusion in the main judgment that continuing nuisance was inapplicable was refused. The principles were clear and well established, and there was no other compelling reason for an appeal to be heard.
4. Information and costs. Information concerning the role of the claimants’ solicitors, their agents and any third-party funding was ordered because it was relevant to costs and settlement, including the risks faced by the defendants. The claimants were to pay RDS’s costs after discontinuance, subject to detailed assessment if necessary. Other costs questions were reserved because the eventual position on accrual and limitation remained unresolved.

The judgment was consequential on the court’s earlier judgment, [2020] EWHC 459 (TCC). Permission to appeal the earlier conclusion on continuing nuisance was refused, with the claimants permitted to renew the application to the Court of Appeal.