Jalla and another v Shell International Trading and Shipping Co Ltd and another

A continuing private nuisance requires repeated activity or an ongoing state of affairs outside the claimant’s land, for which the defendant is responsible, that causes continuing undue interference with the use and enjoyment of that land. The cause of action then accrues afresh while the interference continues.

The continuing presence of harm caused by a completed, isolated escape does not itself create a continuing nuisance. Once the escape has ended and affected the land, the cause of action is complete, even if the substance remains and the damage has not been remediated.

Continuing control is usual but not essential. A person who created the nuisance may remain liable after losing control of the causative state of affairs.

An offshore flowline ruptured during an oil-transfer operation, releasing crude oil into the sea. The leak was stopped after about six hours. For the preliminary limitation issue, it was assumed that some oil reached the appellants’ land on the Nigerian shoreline within weeks and had not been removed.

The appellants alleged private nuisance and sought amendments to their claim after the potentially applicable limitation period. They argued that the oil’s continued presence constituted a continuing nuisance, causing a fresh cause of action to accrue each day.

Stuart-Smith J rejected that argument in [2020] EWHC 459 (TCC). The Court of Appeal dismissed the appeal in [2021] EWCA Civ 63. The Supreme Court considered whether the enduring consequences of a completed, one-off escape constituted a continuing nuisance for limitation purposes.

1. Appeal dismissed. Lord Burrows gave the unanimous judgment, with which Lord Reed, Lord Briggs, Lord Kitchin and Lord Sales agreed. A continuing nuisance exists where repeated activity or an ongoing state of affairs outside the claimant’s land, usually on the defendant’s land, causes continuing undue interference with the use and enjoyment of the claimant’s land. The cause of action then accrues afresh from day to day or on another regular basis.

2. The continued presence of the consequences of an isolated escape is insufficient. The leak was a one-off event and ceased after about six hours. No repeated activity or continuing causative state of affairs remained outside the appellants’ land. The cause of action was therefore complete when the oil affected their land. Its continued presence did not convert the nuisance into a continuing failure to restore the land.

3. Accepting the appellants’ argument would restart the limitation period indefinitely until restoration. It would also conflict with the once-and-for-all assessment of past and prospective loss arising from an accrued cause of action. The law distinguishes the continuing interference necessary for a continuing nuisance from persistent harm resulting from a completed nuisance.

4. Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55 was distinguishable. A living tree and its roots constituted an ongoing external state of affairs that continued to abstract water and interfere with the claimant’s land. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 concerned successive causes of action arising from separate events of damage, rather than the daily continuation of one cause of action.

5. The act of “continuing” a nuisance created by another person is a distinct concept. It describes liability arising where a defendant, with actual or presumed knowledge, fails to take reasonable steps to end the relevant state of affairs. It does not necessarily establish a continuing cause of action.

6. Continuing control is not an essential element. A creator of a continuing nuisance may remain liable after losing control of the causative state of affairs. The absence of control over oil already on the appellants’ land therefore supplied no additional reason for rejecting their case.

7. The respondents were refused permission to cross-appeal on whether private nuisance may emanate from the sea or be committed by a single one-off event. Those questions were unnecessary to the decision and remained open.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously in [2023] UKSC 16. The respondents were refused permission to cross-appeal on two additional questions.
2. Court of Appeal: The appeal was dismissed in [2021] EWCA Civ 63. The court held that the isolated escape created a single cause of action and that the oil remaining on the land was a consequence of that event.
3. High Court: Stuart-Smith J held in [2020] EWHC 459 (TCC) that the alleged nuisance could not constitute a continuing nuisance and that limitation could not be extended on that basis.