Continuing nuisance, forum shopping and an oil spill

Jalla v Shell International Trading and Shipping Co Ltd (2023) – the Supreme Court gives guidance on the limitation period applicable to private nuisance claims

Background

The dispute relates to a mobile oil rig on the Bonga oil field which lies 120 kilometres off the coast of Nigeria and is operated by a Nigerian subsidiary of Shell. On 20 December 2011, a leak occurred during a transfer operation. It is alleged that, over a 6-hour period, some 40,000 barrels of crude oil spilled into the sea.

In December 2017 two Nigerian citizens commenced proceedings in London, alleging that the oil slick reached the Nigerian coast and interfered with their use and enjoyment of land.  They claim damages from Shell in the tort of private nuisance. Shell denies that the shoreline was significantly impacted. Among the preliminary issues in the case is the question of limitation. Under English law, a 6-year limitation period applies to claims in private nuisance. On the assumption that the Claimants are correct, and oil reached the Nigerian shoreline within weeks of the spill, when did the 6-year limitation period applicable to nuisance claims start to run? 

The Claimants alleged that the continuing presence of oil on the shoreline nuisance gave rise to a continuing nuisance, with the limitation period running “afresh from day to day”. Shell argued that the oil spill in December 2011 was a single event which gave rise to a single cause of action accruing when the oil first reached their land. The doctrine of continuing nuisance was therefore inapplicable. Shell having succeeded at first instance and before the Court of Appeal, the issue reached the Supreme Court.

Continuing nuisance 

Giving the leading judgment of a unanimous Supreme Court, Lord Burrows set out the core principles of the tort of private nuisance:

1. it is a property tort concerned with interference with a claimant’s rights over land – only a person with an interest in that land can sue;
2.  it can be caused by any means and does not require a physical invasion; 
3. the character of the locality will be relevant;
4. coming to a nuisance is not a defence; and 
5.  it is no defence that the defendant’s activity is of public benefit (although this might affect the remedy). 

As set out by Lord Burrows, a continuing nuisance is “… one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land”.

Lord Burrows addressed the importance of recognising the “possible linguistic confusion” when considering what constitutes a continuing nuisance.

• It is potentially inaccurate to describe a nuisance on the defendants’ land as a nuisance. The tort of private nuisance is not committed unless and until damage to the claimant’s land is caused.
• There is a difference between a “continuing nuisance” in ordinary language and a continuing nuisance within the tort of private nuisance in the legal sense.  In the ordinary sense, the continued presence of oil may be described as a continuing problem or nuisance. That is different from establishing a continuing nuisance in the legal sense.
• There is a material difference between a defendant “continuing” a nuisance and simply failing to abate a known nuisance.

Was there a continuing nuisance in this case?

The Claimants submitted that there was a continuing nuisance as long as oil remained on their land. If that submission is correct, the limitation period should run indefinitely until the land is restored. They argued that “one could have a cause of action accruing, triggering a fresh limitation period, at a much later date than the initial activity of the defendant and without any further activity by the defendant”.

The Claimants relied on various cases, including the House of Lords’ decision in Darley Main Colliery Co v Mitchell (1886).

Lord Burrows rejected those submissions. The leak was a one-off event which was remedied within 6 hours. There was no repeated activity by the Defendants, and no ongoing state of affairs for which they were responsible, which caused “continuing undue interference with the use and enjoyment of the claimants’ land.” It was not correct to say that there was a continuing cause of action for as long as the oil remained on that land.

The decision in Darley was “most naturally described as a case of successive causes of action arising through the occurrence of separate events of damage, albeit brought about by the same conduct of the defendants”. On the facts of Darley, “it was crucial … that there was fresh damage caused, that is separate and different subsidence of the claimant’s land, at the later date”. The two instances of subsidence took place in 1868, and then later, in 1882. It was not the case that a cause of action accrued every day until the damage was remedied.

Any other conclusion would “undermine the law of limitation”. It “would also impliedly mean that the tort of private nuisance would be converted into a failure by the defendant to restore the claimant’s land”. 

Continuing nuisance - other relevant factors

Is continuing nuisance unusual?

Lord Burrows emphasised that the doctrine of continuing nuisance may still be applied in other cases. He gave examples of interferences that could amount to continuing nuisances: smoke, noise, smells, vibrations and overlooking in breach of a right of privacy.

Must the defendant have control over the continuing nuisance?

The Defendants argued that, in order to establish a case in continuing nuisance, the Claimants must prove that the Defendants had control over (and could therefore prevent) the continuation of the nuisance. Once the oil had interfered with the Claimants’ land here, the Defendants had no control over that oil.

Lord Burrows was clear that continuing control is not a necessary requirement of continuing nuisance (although it will almost always be present).

Jurisdictional implications

Although the Supreme Court did not consider jurisdictional implications, the case is one of many ‘head office liability’ claims which are currently active before the English courts.  The common feature of these claims is that they are issued against English-domiciled parent companies and arise from the actions of subsidiaries in other jurisdictions, often involving issues such as environmental damage or human rights. 

The present claim is brought against Shell companies registered in England and Nigeria. The Claimants allege that the English company is directly or vicariously liable for the spill. It has been sued in England, as an English domiciled company, pursuant to article 4 of the Recast Brussels I Regulation (Regulation (EU) No 1215/2012). The jurisdiction of the court was confirmed in 2020, following a jurisdictional challenge by the defendants. 

Other decisions, such as those by the Supreme Court in Vedanta Resources PLC & Anor v Lungowe & Ors and Okpabi & Ors v Royal Dutch Shell Plc & Anor and the 2022 Court of Appeal judgment in Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor, confirm that the UK courts are willing to accept jurisdiction in respect of such claims. It is, however, important to note that most of these claims were filed prior to Brexit. We should watch and wait for decisions in post-Brexit claims to see how the courts deal with the impact of the revocation of the Recast Regulation.