King John Bari-Iyiedum Berebon & Ors v Shell Petroleum Development Company of Nigeria

A properly arguable environmental clean-up claim should not be summarily dismissed merely because an agreed remediation scheme is substantially complete. Summary judgment and strike out are inappropriate where disputed factual and expert evidence requires investigation at trial.

The act of state doctrine does not bar a claim merely because the court must assess the effectiveness of remediation carried out under a foreign regulatory scheme. A mandatory injunction may be possible if its terms can be stated with sufficient precision, although equitable factors, including delay, utility and clean hands, remain relevant.

A stay should be lifted where restoration is consistent with justice, proportionality and the overriding objective. Limited, focused factual and expert issues may justify restoration and expedited case management.

The claim arose from two oil spills in the Bodo Creek, Nigeria, in 2008. Liability under section 11(5) of the Nigerian Oil Pipelines Act 1990 had been admitted, and the compensation claims were settled. The remaining claim sought a mandatory injunction, or damages in lieu, for clean-up and remediation.

The proceedings had been stayed since 2014 while the parties pursued the Bodo Mediation Initiative. The defendant applied for strike out or reverse summary judgment, arguing that the remediation was nearly complete, the claim was abusive, and the relief was legally unavailable. The claimants sought restoration for trial, relying on disputes concerning the adequacy and effectiveness of the remediation.

The central issues were whether the residual claim was bound to fail or abusive, whether the act of state doctrine applied, and whether restoration was proportionate and consistent with the overriding objective.

1. Summary disposal. The defendant’s application for strike out and reverse summary judgment was dismissed. The claimants’ evidence disclosed a plausible evidential basis and raised real disputes concerning the remediation methodology, target levels, consultation, oversight, monitoring and the persistence and source of contamination. Determining those matters would require a mini-trial, which was impermissible on the applications under Civil Procedure Rules 1998 rr 3.4(2) and 24.2.
2. Act of state. The claim did not necessarily require adjudication upon the lawfulness or validity of Nigerian executive acts. The court could investigate the factual effectiveness of the remediation and decide whether any liability to the claimants remained without reviewing Nigerian governmental policy, regulatory value judgments or the competence of state agencies. The claim was therefore not bound to fail on that ground.
3. Injunctive relief. Section 37(1) of the Senior Courts Act 1981 conferred jurisdiction to grant an injunction where just and convenient. The prior finding that an injunction might in principle be available under the OPA did not determine whether the claimants had sufficient proprietary interests or whether compensation and remediation had extinguished any entitlement. The pleaded injunction was presently too vague, but suitable precision might be achieved by amendment. The court would assess utility, adequacy of damages, delay and clean hands at trial.
4. Abuse of process. The advanced state of the BMI clean-up was relevant to proportionality, but it did not make the claim objectively pointless or wasteful. Appropriate costs and case management could address the limited scope of the remaining issues.
5. Restoration. The stay was lifted and the claim restored. The court applied the requirements of justice, the overriding objective and proportionate use of court resources. The remaining factual and expert issues were narrow, largely documented and capable of rapid determination. Directions were given for an expedited trial fixed for 17 February 2025.

This was a first-instance decision on applications concerning restoration of a stayed claim and strike out or reverse summary judgment. Earlier decisions in the same litigation included [2014] EWHC 1973 (TCC), [2017] EWHC 1579 (TCC) and [2018] EWHC 1377 (TCC).