Harrison Jalla & Ors v Royal Dutch Shell PLC & Ors

A solicitor must have the individual’s consent to commence proceedings concerning that individual’s private rights. Customary authority held by community rulers may permit proceedings concerning communal land rights, but does not extend to private claims without consent. Costs remain discretionary and may reflect partial success through a proportionate order.

A legal representative may face wasted or non-party costs where it acts without authority or crosses the line from representative to real party. Disclosure may be ordered where it is reasonably necessary to investigate funding, control and financial interest relevant to a potential non-party costs order.

The judgment concerned consequential applications arising from long-running claims for pollution damage following the Bonga oil spill. The substantive claims had been dismissed as statute-barred. The court had previously held that the solicitors had authority to act for individuals who had consented and for community claims concerning communal land rights, but not for private individual claims without consent.

The present issues were the costs consequences of the authority ruling, whether wasted costs proceedings should be pursued against RBL Law Limited, and whether RBL should disclose information concerning litigation funding and control for the purpose of a possible non-party costs order.

1. Authority. Under Nigerian common law, a lawyer cannot bring proceedings concerning an individual’s rights and bind that individual without consent. The claimants established a customary rule giving Kings authority over communal land matters, including proceedings affecting communal land rights without individual consent. They did not establish any customary rule permitting the Kings to authorise proceedings concerning individuals’ private law rights without consent.
2. Costs against the claimants. Proceedings issued without authority are defective and liable to be struck out, but are not devoid of legal effect unless struck out. The defendants were the successful party on the central authority issue. The claimants’ limited success concerning four community claims and five individuals justified a proportionate order rather than an order for all costs. The claimants were ordered to pay 90% of the authority-issue costs on the standard basis, with £577,454.58 paid on account.
3. Wasted costs. Solicitors warrant that they have authority to issue proceedings. RBL’s lack of authority for most individual claims, together with the possibility that it held further authority documents but failed to disclose them, provided material capable of supporting wasted costs proceedings. RBL was therefore added as a defendant for costs and given an opportunity to show cause.
4. Non-party costs and disclosure. The statutory discretion is whether it is just to make a costs order. A legal representative’s funding and financial interest do not automatically make it liable; the question is whether, in the circumstances, it crossed the line and became a real party. The disclosure sought was likely to illuminate control, funding and benefit, and was proportionate in view of the substantial unrecovered costs. RBL was added as a defendant for costs in both proceedings and ordered to disclose specified funding information and documents. The costs of the disclosure application were reserved.

First-instance consequential judgment following earlier decisions in the same litigation. The judgment records that the substantive claims had been dismissed by order dated 27 June 2023.