Jalla & Ors v Shell International Trading And Shipping Company & Anor

A continuing nuisance requires a continuing state of affairs, event or hazard which the defendant permits to persist. It does not arise merely because harm from a single, completed escape remains on the claimant’s land.

An isolated spill gives rise to a single cause of action. That cause accrues when the relevant claimant first suffers actionable damage, although this may occur at different times for different claimants. Abatement requires removal or neutralisation of the condition creating the nuisance. It does not ordinarily require the defendant to remediate consequential damage beyond its control.

The appellants were individuals and communities alleging that a six-hour offshore oil spill on 20 December 2011 polluted their Nigerian land. They sued the UK-based anchor defendant, STASCO, and the Nigerian operator, SNEPCO, in negligence and nuisance.

Stuart-Smith J held that the spill could not amount to a continuing nuisance and that many claims were potentially time-barred: [2020] EWHC 459 (TCC). The viability of claims against SNEPCO depended on a valid claim against STASCO.

The sole issue on appeal was whether oil remaining on land after the one-off spill generated a fresh cause of action in nuisance each day, or whether each claim accrued when actionable damage was first suffered.

1. Appeal dismissed unanimously. The court upheld the declaration that the alleged nuisance was not a continuing nuisance. A tortious cause of action is ordinarily a single, self-contained claim arising from an act or omission which causes actionable damage. Although individual claimants might first suffer damage at different times, a single spill did not generate a new cause of action on every subsequent day.

2. A continuing cause of action generally involves repetition of the relevant acts or omissions. In nuisance, the paradigm case is an ongoing condition or hazard, such as encroaching tree roots, which continues until it is abated. The court distinguished [2001] UKHL 55: the tree and roots continued to affect the land, whereas the leak in this case was stopped within hours. Oil left on the appellants’ land was a consequence of the completed event, not a continuing state of affairs created by the respondents.

3. It was wrong to equate legal nuisance with continuing physical harm. Such an approach would undermine the applicable limitation period and expose a defendant to fresh claims indefinitely after a one-off escape. The flexibility of modern nuisance law, including that described in [2018] EWCA Civ 1514, did not justify that result.

4. Abatement concerns the condition constituting the nuisance, not remediation of its consequential damage. The respondents abated the alleged nuisance by stopping the leaking pipeline. Their lack of control over oil after it entered the sea, including any later clean-up, meant that they were not subject to a continuing nuisance merely because remediation had not occurred. If liability were established, damages might include clean-up costs, but that did not create an ongoing cause of action.

5. The court did not determine the respondents’ further arguments concerning a land-user requirement or whether an isolated escape could itself found nuisance liability. Those issues were unnecessary once the appeal on continuing nuisance failed.

• Court of Appeal (Civil Division): Dismissed the appellants’ appeal and upheld the ruling that the one-off spill could not constitute a continuing nuisance: [2021] EWCA Civ 63.
• High Court, Technology and Construction Court: Held that the alleged nuisance was not continuing; claims accrued when each claimant first suffered actionable damage, with consequential limitation and jurisdiction effects: [2020] EWHC 459 (TCC).