There have been a number of hearings in Jalla v Royal Dutch Shell in the last month. On 9 March 2020, Stuart -Smith J ordered on jurisdiction, and on 30 March he gave another ruling relating to the disclosure of the damages-based agreement entered into by the claimants on the matter.
On 2 March 2020, Stuart-Smith J gave judgment in relation to limitation issues.
The claim was bought by Harrison Jalla and many others against five defendants, all of whom were linked to Royal Dutch Shell plc. The claimants brought the action in negligence and nuisance on behalf of over 27,500 people who lived by a stretch of coast in Nigeria. It is their case that in 2011 a large oil spill occurred that was the responsibility of the defendants. The defendants resisted the claims on a number of grounds. One of the defences was that the oil from December 2011 did not reach the claimants’ coastline or cause the damage alleged. They also argued that the claims were time barred. It is of note that a further complication arose in relation to limitation. It was submitted that the Nigerian limitation period was five years from the date of the incident, rather than six years envisioned for nuisance under the Limitation Act 1980.
The claimants issued proceedings on 12 December 2017. Three defendants were named in the claim form: Royal Dutch Shell; Shell International Limited (SIL); and Shell Nigeria Exploration and Production Company Limited (SNEPCO).
The claimant then amended the claim form on 4 April 2018. The name of the second defendant was amended by the addition of the words Trading and Shipping Company Limited so that the second defendant was identified as Shell International Trading and Shipping Company Limited(SITSCL). The amended claim form and particulars of claim were served on RDS and STATSCO on 10 April 2018. Thereafter, several applications were made by the parties:
- The claimant asked for permission to serve outside the jurisdiction on SNEPCO on 11 April 2018.
- The defendants made an application in relation to jurisdiction asking for a declaration that the court did not have jurisdiction to try the claims on 28 September 2018.
- The claimant made an application on 3 April 2019 to amend the particulars of claim.
- The claimants made a further application to amend the claimant’s claim form and to rely on two experts’ reports on 7 June 2019.
- The claimants made an application on 3 October 2019 for a declaration that the defendants were estopped from denying that claims were against STATSCO or in the alternative permission to amend the claim form.
- The claimant made a further application on 28 October 2019 to adduce further evidence.
As stated above, March 2020 has been a busy period for this case, with several preliminary issues being decided.
Stuart Smith J stated in this preliminary hearing, which related to limitation and its effect on amendments of pleadings, at paragraph 20:
“The question of limitation hangs over all the applications before the Court and is a nettle to be grasped at the outset… it is not open to the Court to perform a mini-trial of disputed facts… that said many of the relevant facts are uncontroversial or based upon documents that do not require explanation by additional evidence or both.”
He went on to describe the options to claimants who find themselves in the situation of amending pleadings after limitation has ended, and cited Chandra v Brooke North. In particular, Jackson LJ stated:
“66. First the court could deal with the matter as a conventional amendment application. Alternatively, the court could direct that the question of limitation be determined as a preliminary issue.
69. This leads on to a separate and important point. If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two action will probably be consolidated and the question of limitation can be determined at trial.”
Stuart-Smith J also described the suggestions of Henderson LJ in the case of Blue Tropic v Chkhartushvili. At paragraph 26, Henderson LJ stated:
“After some further debate, the judge said that he would grant permission to amend, but without prejudice to any argument that might be raised at trial that the amendment should be disallowed because it was time barred… in my judgment this was clearly a sensible way to proceed, because the question whether or not the claim was time barred could not be determined until the evidence had been heard at trial, and neither side was suggesting that the trial would have to be adjourned if permission to amend were granted on that provisional basis.”
Stuart-Smith J outlined the factual background to the limitation arguments and the new submission of the claimants that actionable damage may not have been suffered by some claimants before 4 April 2012. Evidence was submitted by the claimants as to the timing of actionable damage and Stuart-Smith J summarised them as follows:
- A journalistic report dated 1 January 2012.
- A report dated 22 February 2012 which listed soil and water samples that were taken on various dates between 10 January and 9 February 2012.
- A report commissioned by one of the defendants entitled “Bonga FPSO oil leak update” dated 18 May 2012.
- A report by the Director General of the Nigerian Maritime Administration and Safety Agency dated 16 July 2012.
- A post-impact assessment report carried out by one of the defendants, dated January 2014.
Issues to be considered on limitation
Stuart-Smith J quickly identified that the limitation period differed between claimants. He asked, when did the actual actionable damage occur? It was clear from the evidence provided by the claimants that the limitation period for some of the claimants may not have expired when they took initial procedural steps.
He also asked whether the limitation period should be extended on the basis of continuing nuisance. Again this differed between claimants.
He also questioned whether the limitation period should be extended due to deliberate concealment by the defendants.
Stuart-Smith J gave a very detailed judgment. He ordered at paragraph 274:
“That if the relevant period of limitation for a given Claimant had not expired on 4 April 2018 the amendment of the Claim Form on that date pursuant to CPR 17.1 was, and is effective.
If the relevant period of limitation for a given Claimant had expired on 4 April 2018 the amendment on that date by which STATSCO was purportedly joined was an nullity and is ineffective.”
(The judge ordered that claimants falling within this category should cease to be claimants in the action.)
“If and to the extent that the joinder of STATSCO on 4 April 2018 was effective the claim against STATSCO cannot proceed on the basis of an allegation that STATSCO was responsible for the operation. If the relevant period of limitation for a given Claimant had not expired by the date of handing down this judgment the application to amend the Claim Form should succeed.
Any permission to amend the Claim Form as and from the date of handing down the judgment should make clear that it does not apply to those Claimants within the relevant period of limitation has expired.”
The judge therefore said that the application to amend the particulars of claim should succeed in respect of those claimants for whom the relevant period of limitation had not expired at the date of handing down the judgment.
The judge further ordered that there should be another half day hearing after hand down of the judgment to address the representative nature of the action and whether the structure needed to be adjusted. He gave directions to the claimants, stating that the claimants must identify and plead their case on when their causes of action accrued. The judge basically split the action in two: those claimants who were timed-barred could not proceed with the action; and those claimants who were not time-barred could continue with the action.
It was clear that the arrangement for a group action needed strict handling and the judge intervened with his order that the court assist with the re-organisation of the joint action.
Notes for practitioners
It should be noted that Stuart-Smith J was critical of the instructing solicitors acting on behalf of the claimants in this matter. The solicitors were acting for over 27,500 separate claimants who all had different dates for the start of their claims.
This is an enormous undertaking for any firm, and thought should be given to capacity and whether instructions can be dealt with in an appropriate manner.