Alame & Ors v Shell PLC & Anor

An amendment made after expiry of a limitation period does not engage Civil Procedure Rules 1998, r 17.4 where it merely gives further particulars of a broadly pleaded claim. The comparison of causes of action must be made at the appropriate level of abstraction, by reference to the pleaded duties, breaches and damage.

A court cannot require a claimant to advance its case by the method of proof preferred by the court or the opponent. In complex group litigation marked by substantial informational asymmetry, case management should seek equality of arms. Disclosure, staged refinement of pleadings and collaboratively selected lead cases may be necessary, while ensuring that any eventual trial is conducted on a sufficiently particularised case.

The claimants, comprising individuals and community representatives from Bille and Ogale in the Niger Delta, seek relief for environmental damage said to have resulted from oil pollution connected with Shell-operated infrastructure. They allege statutory and common-law liability under Nigerian law.

May J allowed amendments adding further identified spills and allegations that pollution from illegal refining of stolen oil was a foreseeable consequence of failures to prevent third-party interference: [2023] EWHC 2961 (KB). She later declared that the claims were to proceed as global, all-or-nothing claims and that the pleadings precluded selection of lead claimants: [2024] EWHC 510 (KB).

The defendants appealed the amendment ruling. The claimants appealed the declarations and the resulting approach to future case management.

1. The defendants’ appeal was dismissed and the claimants’ appeal was allowed. The additional-spills amendments did not introduce new causes of action. From the outset, the claim concerned damage in and around Bille caused by the full series of published and unpublished spills from the defendants’ infrastructure during 2011–2013. Identifying further spills was further particularisation of that existing claim, so Civil Procedure Rules 1998, r 17.4 was not engaged.
2. The illegal-refining amendments did not enlarge the pleaded duty to protect the infrastructure from third-party interference or allege materially different breaches. They clarified that illegal refining of bunkered oil, and its environmental consequences, were foreseeable consequences of the alleged failures. The amendment concerning a wider duty to clean up pollution at refining sites had properly been excluded. In any event, if the permitted amendments introduced new claims, they arose from substantially the same facts because illegal refining and its consequences were central to the defendants’ pleaded case.
3. The declaration requiring the claims to proceed as global claims was set aside. A claimant is generally entitled to choose the causes of action and method by which it seeks to prove them. Unless a claim is struck out, stayed or otherwise subject to a proper case-management sanction, the court cannot compel a claimant to pursue an all-or-nothing method of proving causation which it has consistently disavowed. The court therefore did not decide whether global claims may apply to environmental claims or under Nigerian law.
4. The declaration preventing selection of lead claimants was also set aside. This was a paradigm case for lead cases. Future case management in the High Court should be guided by the overriding objective, including equality of arms, the significant asymmetry of information, appropriate disclosure, collaborative lead-case selection, and subsequent refinement of the claimants’ case so that the defendants have a fair opportunity to meet it at trial.

Males LJ agreed, adding that the amendments concerning deliberate dumping by illegal refiners were in any event permissible under r 17.4(2). Bean LJ agreed with both judgments.

• Court of Appeal (Civil Division): The defendants’ appeal against permission to amend was dismissed. The claimants’ appeal against the two case-management declarations was allowed.
• High Court, King’s Bench Division: May J permitted the additional-spills and, save for one remediation allegation, illegal-refining amendments: [2023] EWHC 2961 (KB).
• High Court, King’s Bench Division: May J declared that the claims should proceed as global claims and that their pleading precluded lead-claimant case management: [2024] EWHC 510 (KB). Those declarations were set aside.