The Supreme Court has recently given judgment in Jalla and another (Appellants) v Shell International Trading and Shipping Co Ltd and another (Respondents)  UKSC 16.
The case involved two Nigerian citizens who sued two companies within the Shell group in private nuisance in respect of damage to their land alleged to have resulted from an oil leak on 20 December 2011 lasting six hours during a cargo operation in the Bonga oil field, approximately 120km off the coast of Nigeria. An estimated equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The defendants are alleged to be liable for the operation behind the Bonga Spill.
The appeal concerned the application of the limitation period for torts, which is usually six year, in respect of the claims for private nuisance. The claimants issued their claim form on 13 December 2017, just under six years after the spill occurred on 20 December 2011. In April 2018, over six years after the spill, the claimants purported to amend their claim form including changing one of the parties being sued from Shell International Ltd (a company which they had initially sued) to STASCO. In April, June and October 2019, they issued a series of applications to amend their claim form and particulars of claim. The claimants argue that so long as undue interference with their land is continuing, because oil on their land has not been removed or cleaned up, there is a continuing cause of action for the tort of private nuisance that is accruing afresh from day to day.
At first instance it was declared that declared that the nuisance as alleged by the Claimants in their original Particulars of Claim and/or their draft Amended Particulars of Claim and on the evidence before the Court at the hearings in September and October 2019 could not constitute a continuing nuisance and that accordingly the limitation period should not be extended by reference to the concept of a continuing nuisance. This was upheld by the Court of Appeal who found that the judge had been correct to decide that the claimants’ cause of action accrued when the oil struck their land. The Supreme Court have now unanimously rejected the appeal on the issue of whether there was a continuing nuisance.
For the purposes of the appeal it was it was assumed that some quantity of oil reached the Nigerian Atlantic shoreline within weeks of 20 December 2011 and that the tort of private nuisance may be committed where the nuisance emanates from the sea or is a single one-off event. The tort of private nuisance is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land and is actionable only on proof of damage which is satisfied by establishing the undue interference with the use and enjoyment of the land.
A continuing nuisance is in principle no different from any other continuing tort or civil wrong and 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. The cause of action therefore accrues afresh on a continuing basis.
However on the assumed facts of this case, that oil is still present on their land and has not been removed or cleaned up, there was no continuing nuisance. This is because outside the claimant’s land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land. The leak was a one-off event or an isolated escape. The cause of action accrued and was complete once the claimants’ land had been affected by the oil. Accepting the claimants’ submission would be to extend the running of the limitation period indefinitely until the land is restored.