Alame & Ors v Shell PLC & Anor

The court determined preliminary questions of Nigerian law arising from oil-pollution claims. Limitation for the private-law claims was five years, running from entry of oil in trespass and from damage in other causes of action. Nigerian courts would apply the continuing-tort principles in Jalla v Shell. A licence-holder may be liable under section 11(5)(b) of the Oil Pipelines Act 1990 for neglect to protect a pipeline against third-party interference, and third-party interference is not itself a defence. The Act does not exclude common-law claims against persons other than the licence-holder. Paragraph 37 of Schedule 1 to the Petroleum Act 1969 mirrors liability under Rylands v Fletcher. Claims based on nuisance, trespass or Rylands v Fletcher for pollution from illegal refining were unavailable; negligence remained fact-sensitive. Fundamental-rights claims against private companies were substantially unavailable and, in any event, ancillary to the private-law claims.

Four group claims were brought by individuals and communities from Bille and Ogale in the Niger Delta against Shell plc and its Nigerian subsidiary, SPDC. The claims concerned oil pollution from pipelines and non-pipeline assets, third-party interference, illegal refining, and alleged breaches of Nigerian statutory, common-law and fundamental rights.

The parties agreed 24 preliminary issues to be decided before disclosure, selection of lead claimants and a later trial. Two issues had fallen away following the Court of Appeal decision in Alame & Others v Shell Plc & SPDC [2024] EWCA Civ 1500. May J determined the remaining issues by predicting the likely decisions of the Nigerian Supreme Court on expert evidence of Nigerian law.

1. Method. Nigerian law was a question of fact. The court had to evaluate the expert evidence and predict the likely decision of the Nigerian Supreme Court, taking account of Nigerian precedent and persuasive foreign authority.
2. Limitation and continuing torts. The limitation period for claims under the OPA, the Petroleum Act and Nigerian common law was five years. Time ran from entry of oil on land for trespass, and from the first damage caused to the claimant for other causes of action. Nigerian courts would apply the principles in Jalla v Shell International Trading and Shipping Co Ltd [2024] A.C. 595; repeated tortious or statutory breaches could give rise to fresh causes of action.
3. Oil Pipelines Act. Section 11(5)(b) could impose liability where neglect to protect a pipeline caused damage, including damage following third-party interference. The word protect involved a shielding and caring obligation, but did not require military or police-style guarding. Third-party interference was not itself a defence. Regulation 26(2) of the 2011 Regulations could not limit section 11(5)(b). The OPA was an exclusive code against the licence-holder, but did not exclude common-law claims against other persons.
4. Non-pipeline assets. Regulations 25 and 37 did not create private-law claims for oil-spill damage. Paragraph 37 of Schedule 1 to the Petroleum Act could support liability co-extensive with Rylands v Fletcher. Common-law claims in negligence, nuisance, trespass and under Rylands v Fletcher remained fact-sensitive. Remediation was not a defence, although it could affect loss.
5. Illegal refining. Nuisance, trespass and Rylands v Fletcher could not support claims for pollution caused by oil stolen and later refined by independent third parties. The court declined to determine finally whether negligence could cover such loss before the facts and pleadings were developed.
6. Causation. The Nigerian Supreme Court would first seek the most responsible cause under ANTS v Atoloye. If that could not be identified, it would apply persuasive English principles, including apportionment for divisible injury and material contribution principles where appropriate.
7. Fundamental rights. Section 20 of the Constitution was non-justiciable. Section 33 was not presently enforceable against private companies, although it could be engaged by environmental pollution at state level. Section 34 was enforceable against private persons but was unlikely to be engaged by oil pollution. African Charter rights were State obligations and could not be enforced against private companies. The pleaded fundamental-rights claims were ancillary to the private-law claims and therefore could not proceed under the FREP Rules.
8. The parties were directed to draw up the order reflecting the determinations.

The claims were commenced between 2015 and 2017. Jurisdiction was resolved by the Supreme Court in Okpabi and others v Royal Dutch Shell Plc and another [2021] UKSC 3. Earlier case-management and amendment decisions were made in the High Court. The Court of Appeal subsequently determined related appeals in Alame & Others v Shell Plc & SPDC [2024] EWCA Civ 1500, after which the present preliminary issues were tried.