Alame & Ors v Shell PLC & Anor

In large environmental group litigation, a claimant relying on an events-based case must identify the event said to have caused loss, and must plead the connection between the event, the defendant’s responsibility and the loss. A material-contribution approach to causation does not remove that requirement. A global claim is available where all relevant causative events are alleged to be the defendant’s responsibility and are adequately specified.

At an early case-management stage, amendments may be permitted where they particularise an existing factual case or arise from substantially the same facts. The court may permit arguable constitutional claims despite limitation consequences where abuse of process and prejudice are not established.

The judgment concerned four related sets of claims arising from oil pollution in the Bille and Ogale regions of the Niger Delta. The claimants alleged that Shell was liable for pollution from pipelines and associated infrastructure, while Shell relied principally on third-party theft, illegal refining and other sources of pollution.

The court considered the adequacy of the pleaded causation case, whether the claims should be treated as global claims, applications to amend to add constitutional and illegal-refining allegations, an application to add further Bille spills, and an application to strike out new Ogale particulars of claim.

1. Disposition. The court refused to strike out the claims. It allowed the amendments except for the proposed amendment alleging a duty to clear up spills or by-products from illegal refineries in the form presented. The claims of all but five Bille claimants were, for the present, treated as global claims.
2. An events-based claim requires identification of the event said to cause loss. The claimant must be able to link the event to the defendant’s breach or other legal responsibility and then link the event to the loss. A plea that an event made a material contribution still requires the event to be identified.
3. A global claim may proceed where the claimant adequately specifies a series of events, establishes the defendant’s responsibility for all of them, and alleges a global loss to which those events contributed. The court found no principled distinction between construction claims and environmental contamination claims on this pleading issue.
4. Lead claimants could not reliably be selected merely by area, occupation or date. The legal route and available defences differed according to whether the event involved a pipeline malfunction, a non-pipeline malfunction or third-party interference.
5. The constitutional amendments were arguable and arose from the same facts as the existing claims. The court declined to determine conclusively, without evidence of Nigerian law, whether the ancillary-claim principle deprived them of any real prospect of success. The amendments were not abusive merely because they could improve the claimants’ limitation position.
6. The further Bille spills were treated as additional particulars of the existing pleaded case. The amendments concerning loss arising from failure to protect pipelines against third-party interference and illegal refining were allowed. The proposed remediation amendment was refused because it was unclear and would enlarge the alleged duty and factual investigation.