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Jalla v Shell – the after-effects of a solitary oil spill are not a continuing nuisance

Posted: 02/10/2023

A recent judgment of the Supreme Court deals with an apparent test case on behalf of 27,830 claimants who were seeking to get around a time-limit issue by reframing their claim in the tort of nuisance.

Admittedly, the affected landowners were rather late in the day in bringing their claims arising out of the Bonga oil spill. It was as long ago as 20 December 2011 when forty thousand barrels of crude oil spewed into the ocean some 120km off the coast of Nigeria.

The leak began in the early hours of the morning at Shell’s offshore installation in the Bonga oil field. The tanker Northia had begun loading crude the previous day. Oil was being extracted from the seabed by a floating production storage and offloading unit and pumped through a single point mooring buoy via three submersible flexible flowlines, and then onwards onto Northia. Loading was abruptly halted after one of the flexible flowlines ruptured, following which it took six hours to stop the leaking oil. The Nigerian government slapped Shell with a US$3.6 billion fine and 27,830 landowner claimants were alleged to have been affected.

Under English law, section 2 of the Limitation Act 1980 prevents a claim in tort being brought more than six years after the date on which the cause of action accrued. Although the claimants did bring proceedings within six years of the spill, they apparently named the wrong Shell entity as defendant. Hoping to circumvent this issue, the claimants sought to reformulate their claim against the correct Shell entity in a manner that would not be time-barred.

The newly characterised claim was alleged to have arisen in the tort of private nuisance; normally considered to be a tort dealing with the rights of neighbouring landowners. Private nuisance arises where the defendant is indirectly responsible for wrongfully interfering with the claimant’s use of their land. While the interference need not be as direct as an act of trespass, the law does require that the nuisance has repeatedly or continuously taken place. A single act of interference is not enough. Classic examples of nuisances include smoke emanation, noise pollution, and escapes of sewerage or floodwater.

The claimants alleged there had been such a continuous activity, namely the ongoing presence of oil on the claimants’ land. If this formulation were successful, the presence of oil would give rise to a fresh cause of action that was renewing with each passing day, thereby resetting the clock for time-limit purposes.

The Supreme Court dealt with this matter as a preliminary issue. Giving the judgment of the court, Lord Burrows agreed that an unresolved oil slick can certainly linguistically be described as ‘a nuisance’ but found that it is a different question whether the legal requirements for a claim in the tort of private nuisance are made out.

The claimants relied heavily on the case of Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55. Delaware concerned a tree on a highway pavement, the roots of which were encroaching onto adjoining residential land and causing dehydration to the soil. This was impairing the land’s loadbearing capacity, resulting in cracking to the structure of a block of flats. The House of Lords, in that case, held that the landowner was able to recover the cost of underpinning works from the highway authority. Such losses were found to be reasonably foreseeable, particularly as the authority had refused to remove the tree even after being notified of the problem.

The claimants contended that Delaware was authority for the proposition that a failure to remedy the consequences of a single event can be a continuing nuisance. The Supreme Court however distinguished the case. Delaware concerned an ongoing interference with the claimant’s land that was originating from beyond the land. As the living tree roots were continuing to encroach and deplete the soil of water, a fresh cause of action therefore accrued daily.

The court observed that it is precisely because of the ongoing nature of private nuisance that an injunction, prohibiting the defendant from continuing the interference, is a typical remedy. A claimant would otherwise need to periodically return to court to seek further damages for the continuing harm, as damages can only ever be awarded for causes of action that have already arisen.

Tellingly, such an injunction would have been no use to the claimants in this case, as all the harm had already manifested. As damages could have been completely assessed immediately following the ingress of oil, it was not plausible to suggest that different causes of action were arising day by day thereafter.

The Supreme Court also made the logical observation that a reformulation of the claim would not have solved the limitation issue in any event. Rather, the limitation period is always six years from the accrual of the right of action. Damages can only be recovered for past occurrences of a continuing nuisance that took place within the six-year window before the claim was brought, whereas the oil spill preceded this time.

It seems abundantly clear from the judgment that the after-effects of a solitary oil spill cannot qualify as a private nuisance. Had the claimant’s submission been accepted, it would have had the radical effect of re-inventing the tort of private nuisance as an actionable failure to restore the claimant’s land following a single incident.

The Supreme Court’s decision also serves as a stark reminder that parties who commence proceedings at the very end of the limitation period render themselves hostages to fortune. With time in hand, a failure to properly name the defendant in a claim form may be nothing more than a mere linguistic ‘nuisance’. If the mistake is discovered out of time, however, it may prove to be a potentially fatal oversight.

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