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

A claim for a mandatory injunction may be particularised by amendment where the relief has always formed part of the pleaded case and the proposed terms are not plainly bound to fail. Potential engagement of the act of state doctrine, including questions concerning foreign regulatory standards, may remain matters for trial where they require detailed factual and legal assessment.

Experts may refer to earlier reports without calling their makers. The court determines the weight of such evidence. Further sampling may be admitted where the opposing experts have had a fair opportunity to address it. Foreign law must be proved by expert evidence; English courts should not assume that foreign law adopts the same principles as English law on mandatory injunctions.

The proceedings concerned two major oil spills in Nigeria in 2008. The claimants alleged that the clean-up certified by the Nigerian regulator was inadequate and sought a mandatory injunction requiring further remediation, or damages in lieu.

The court determined three interlocutory matters before trial: permission to amend the Particulars of Claim to specify the injunction sought; objections to earlier reports, a further expert report and December sampling; and the defendant’s application to adduce evidence of Nigerian law.

The application followed earlier decisions concerning restoration of the proceedings, strike-out and case management, including [2014] EWHC 1973 (TCC) and [2024] EWHC 276 (TCC). The central issues were whether the proposed relief was plainly unsustainable, whether the evidence could fairly be used at trial, and what evidence was required on the applicable Nigerian law.

1. Amendment. Permission was granted to amend the Particulars of Claim. A mandatory injunction had always been part of the pleaded claim, and the amendment sought to particularise the relief rather than introduce an entirely new cause of action. The proposed injunction focused on remediation outcomes, although its detailed implementation provisions raised issues concerning sampling, expert verification and the court’s possible jurisdiction over an expert panel.
2. The act of state doctrine did not justify refusing permission at this stage. Whether imposing site-specific target levels or requiring testing outside Nigeria would improperly interfere with Nigerian state action depended on detailed consideration of the regulatory position and standards. Those issues remained for trial and could not be treated as a knockout jurisdictional objection on the amendment application.
3. Contested evidence. The claimants’ experts could refer to earlier reports, including reports whose makers would not be called. The reports were not evidence in themselves, and the weight to be given to expert evidence relying on them was for the trial judge. No further general round of responsive reports was required.
4. Permission was given to rely on the signed version of the Wereley Report, but not on further supplementary evidence from its author. Permission was also given to rely on the December sampling. The defendant’s experts could serve a short responsive report, since they had received the results and had already addressed them in a joint statement.
5. Nigerian law. The court accepted that foreign law must be proved by expert evidence. The defendant was permitted to rely on the Omoaka report in full, including evidence concerning whether the Oil Pipelines Act 1956 provided an exclusive remedies regime and the Nigerian principles governing mandatory injunctions. The court could not assume that Nigerian law on mandatory injunctions was equivalent to English law. The apparent possibility of a later change or clarification in Nigerian law justified admitting the wider report, despite the lateness of the application.
6. Any consequential directions were left to agreement between the parties, with the parties expected to prepare the evidence before the forthcoming trial.

The judgment itself describes earlier decisions in the same proceedings, including the restoration and strike-out decision of O’Farrell J and subsequent case-management decisions. This court determined the interlocutory applications before the scheduled trial.