A Supreme Court judgment handed down on 10 May 2023 has dealt a significant blow to the growing body of mass claims for environmental damage.

The decision in Jalla v. Shell International Trading and Shipping Company (STASCO) establishes that the damage caused by an oil spill is to be considered a single event, rather than a "continuing nuisance." In this case, this meant that the limitation period for bringing claims started to run from the date that the oil reached shore, rather than continuing until it was cleaned up.

This finding will have an impact on other environmental nuisance claims where there has been a damaging one-off event, including floods as well as other claims relating to oil pollution in Nigeria.

The oil spill

On 20 December 2011, one of the largest oil spills in the history of Nigerian oil exploration took place. The spill of at least 40,000 barrels happened 120km off the coast of Nigeria at the Bonega oil field.

Following the leak, a claim was brought by Mr Jalla and Mr Chujor, both as claimants in their own right, as well as on behalf of 27,800 individuals and 457 communities affected by the spill. The claimants alleged that migrated oil had a devastating impact on the Nigerian Atlantic shoreline, damaging the land, water supplies and fishing waters in and around the coastline.

Representative action and the collective action regime

The first hurdle faced by the claimants related to their attempt to bring a representative action. At first instance and on appeal, the various claimants did not meet the requirement of having the "same interest" under CPR 19.6.

The Court of Appeal dismissed the claimants' argument that the case was materially indistinguishable from the representative "opt-out" action case of Lloyd v. Google, where all claimants suffered the same type of breach damage, which was the loss of their personal data. The court contrasted this with the present case, where causes of action, causation and damage would vary between individuals.

That judgment shed helpful light on the English collective action regime: save for limited exceptions, the High Court's collective action regime operates on an "opt-in" basis. The possibility of pursuing "opt-out" actions in England beyond the Competition Appeal Tribunal remains restricted.

Continuing nuisance

As the claims against the first defendant, STASCO, were commenced more than six years after the oil is alleged to have first reached the Nigerian shoreline, the claim would be statute-barred unless it involved a "continuing nuisance".

A continuing nuisance involves repeated activity by the defendant, or an ongoing situation for which the defendant is responsible, which causes continuing undue interference with the use of the claimant's land.

The claimants asserted that the ongoing and unremedied pollution fell within this definition. They argued that a fresh cause of action accrued each day as renewed damage or interference with the use of land occurred, thereby extending the limitation period while the land and water remained affected. This argument failed in the High Court and the Court of Appeal, but the claimants were given permission to appeal further to the Supreme Court.

Supreme Court decision

The Supreme Court unanimously dismissed the appeal, rendering the claim against STASCO time-barred.

The judgment explains that a continuing nuisance is one where, outside the claimants' land, there is repeated activity by the defendants causing continuing interference for which they are responsible. The court rejected the claimants' argument that there was a continuing nuisance, on the assumed facts that oil was still present on their land and had not been removed or cleaned up. For a continuing nuisance to exist, the interference may be similar on each occasion but needs to occur day after day so that the cause of action accrues afresh daily. The court provided examples of ongoing nuisance, such as smoke, smells and noise. In contrast, the oil spill was a one-off event.

This is distinguishable from a case relied upon by the claimants (Delaware v. Westminster), involving tree roots. In that case, the damage caused by the roots resulted in continuing, undue interference with the use and enjoyment of the claimant's land. Instead, the oil spill is a single event, for which all damages must be claimed at once, even if the consequences of the leak persist.

What is next for environmental litigation?

There is an increasing amount of group litigation brought in England for environmental damage sustained in other parts of the world (see our articles on Vedanta v. Lungowe here and here, and on Okpabi v. RDS, another claim against Shell for oil pollution in Nigeria, here and here).

It is not uncommon for this type of claim to be brought some time after damage was first suffered, and for claimants or defendants to be added or substituted further down the line. The Supreme Court's decision presents a significant barrier regarding limitation for similar claims and makes clear the courts' willingness to strictly apply relevant legal principles to claims in this sphere. Unsurprisingly, those bringing environmental damage claims must comply with the established law on limitation, based on important policy considerations for the protection of defendants.