By Peter Okediya
Two Nigerians brought a claim under the tort of private of nuisance in England over an incident of oil spillage by Shell. Despite novel and compelling arguments by the claimants’ counsel, the UK Supreme Court in JALLA & ANR V SHELL INTERNATIONAL TRADING AND SHIPPING CO LTD & ANOR held that the continuing effect of an oil spill constitutes no cause of action. On the legal side, I share four essential arguments the Supreme Court relied on that has implications for private nuisance claims. On the academic side, I consider the fate of environmental litigation in the light of rigid adherence to technicalities in civil trials.
CONTINUING NUISANCE IN PRINCIPLE
The tort of private nuisance refers to the undue and substantial interference of a claimant’s use and enjoyment of his land by the defendant’s activity or a state of affairs which the defendant has control of. It is pertinent to note that the tort of private nuisance is actionable only on proof of damages, that is, a claimant must establish the undue interference with his use of land. This could be in the form of smell, smoke, noise, invasion of privacy or pollution. Apparently, there need not be any physical damage.
While case laws have enunciated principles for the tort of private nuisance, it is a legal concept that often unfolds in unpredictable real-life situations. As a result, rigid definitions may not fully capture the nuanced complexities of nuisance. The UK Supreme Court in FEARN V BOARD OF TRUSTEES OF THE TATE GALLERY shares this view stating thus: “there is no conceptual or a priori limit to what can constitute a nuisance”.
One of such complexities the court is faced with is the issue of continuing nuisance which arose in this Appeal. In principle, a continued nuisance occurs where there is a repeated activity on the defendant’s land by the defendant that causes undue interference with the use and enjoyment of the claimant’s land. For instance, where a defendant discharges waste into a claimant’s land, each day of the discharge constitutes nuisance and a fresh cause of action arises every day – this is continuing nuisance. To understand the relevance of continuing nuisance to the lawsuit under consideration, it is apposite you understand the facts of the lawsuit.
BRIEF BACKGROUND FACTS
On 20 December 2011, an oil spill occurred during an oil transfer operation at the Bonga oil field off the coast of Nigeria. Approximately 40,000 barrels of crude oil were leaked, resulting in significant damage to the Nigerian shoreline and the local community. The leak was stopped within six hours, but its aftermath was alleged to have caused widespread damages.
Almost six years later, two Nigerians initiated legal proceedings in the English courts on behalf of themselves and others affected by the spill. Initially, the defendants named in the lawsuit were Shell International Ltd and Shell Nigeria Exploration and Production Co Ltd. However, the claimants later sought to amend the lawsuit to replace Shell International Ltd with another Shell entity called Shell International Trading and Shipping Co Ltd. It was at this point the defendants objected to the proposed amendments, arguing that they were statute-barred since they were made more than six years after the oil spill incident. The claimants, on the other hand, contended that the ongoing damage caused by the inadequately cleaned-up spill constituted a continuing nuisance, thereby allowing them to bring the claim within the limitation period.
The High Court and the Court of Appeal rejected the claimants’ arguments, ruling that they were indeed out of time to make the amendments. Consequently, the claimants were unable to pursue the claim against Shell International Trading and Shipping Co Ltd. Furthermore, since there was no longer an English-domiciled defendant to anchor the jurisdiction, the English court lost jurisdiction over Shell Nigeria Exploration and Production Co Ltd, which is domiciled in Nigeria. Dissatisfied with this outcome, the claimants appealed the case to the Supreme Court.
In its unanimous decision on 10 May 2023, the UK Supreme Court dismissed the appeal, ruling that the failure to clean up an oil spill does not qualify as a continuing nuisance. The court’s reasoning throw light on several intriguing points and I attempt to encapsulate them into four points:
- The cause of action in continuing nuisance accrues afresh on a continuing basis.
- The principles governing a continuing nuisance are consistent with those governing any ongoing civil wrongdoing.
- Damages cannot be given for future causes of action that have not yet accrued.
- Distinguishing continuing nuisance in the general and legal context.
- THE CAUSE OF ACTION IN CONTINUING NUISANCE ACCRUES AFRESH ON A CONTINUING BASIS
An essential element of a continuing nuisance is an act of interference by a defendant. At each instance of harm or interference by the defendant, a cause of action accrues. However, this principle did not assist the claimants in this lawsuit and it weakened their arguments.
The claim bordered on whether the lawsuit is outside the limitation period. The oil leak incident happened on the 20 December 2011 and was stopped within six hours; but the already spilled oil had already spread through hydrological means and polluted lands belonging to communities. Under English Law, there is a limitation period of 6 years for instituting the action. The matter was brought before the court on 13 December 2017 and there was no issue about exceeding the limitation period. However, four months later, the claimants amended their claim form and particulars of claim and issued an application to this effect. Meanwhile, the procedural rules provide that one cannot amend claims outside the statutory limitation period – save for some exceptions which the claimants did not accentuate. As a result, the defendant contended that the application was sought outside the limitation period. The claimant, on the other hand, argued that they are within time so long the effect of nuisance is still present. They rely on the case of DARLEY MAIN COLLIERY CO V MITCHELL where the defendant extracted coal from under the claimant’s land thereby causing a subsidence damage, which they compensated the claimants for. The defendant thereafter stopped excavation work but there was further damage due to an excavation by another company on their own land which affected the claimant’s land because the damage wouldn’t have happened if the defendant left enough support under the claimant’s land. The defendant was held liable for continuing nuisance. However, the Supreme Court distinguished Darley’s case because the oil leak in the instant lawsuit did not cause a separate and different damage to the claimant land and he could not prove that any of the defendant’s activities continued the oil leak once the initial leak had been stopped.
This buttresses the principle that for a cause of action to continue, it must be shown that the act of interference or unreasonable oversight by the defendant never stopped, irrespective of the lifetime of the damages caused. In the instant case, the defendants stated that they stopped the leak six hours after the incident, hence, the cause of action only accrued on the day the oil leak happened. Failure of the claimant to amend their claims within six years from the day the cause of action accrued was tantamount to a waiver of their right to seek remedies against the defendants.
- THE PRINCIPLES GOVERNING A CONTINUING NUISANCE ARE CONSISTENT WITH THOSE GOVERNING ANY CONTINUING CIVIL WRONG
The tort of private nuisance being a civil wrong shares similar fundamentals with other tortious liabilities. Proving a tort requires proving the elements of that tort. For instance, in the tort of false imprisonment, as long as the claimant was imprisoned, each day of imprisonment constituted a cause of action respectively. This is the same for continuing nuisance because every day of interference by the defendant causing damage to the claimant constitutes an independent cause of action.
- DAMAGES CANNOT BE GIVEN FOR FUTURE CAUSES OF ACTION WHICH HAVE NOT YET ACCRUED
Under common law, damages are given for the cause of action that have accrued. This means that in a situation of continuing nuisance where court had granted damages for in respect of a claim arising from a cause of action, if a subsequent cause of action accrues by the same defendant, the claimant can always return to court for the subsequent interference and losses suffered as a result. Under equity, however, equitable damages can be given for future causes of action in lieu of an injunction.
In the instant case, the limitation period is 6 years from the accrual of cause of action, then, it follows that they cannot claim damages at common law for a past occurrence (the oil leak) since it accrued more than 6 years after they amended their claims.
- DISTINGUISHING CONTINUING NUISANCE IN THE GENERAL AND LEGAL CONTEXT
The claimants submitted that there was a continuing nuisance by Shell because after the oil leak, oil was still present on the claimant’s land and has not been cleaned up. That is, the effect of the nuisance was nuisance itself. The Supreme Court, disagreeing with the claimants, stated: “If this submission were correct, it would mean that if the other ingredients of the tort of nuisance were made out, and a claimant’s land were to be flooded by an isolated escape on day 1, there would be a continuing nuisance and a fresh cause of action accruing day by day so long as the land remained flooded on day 1000”.
The result is the indefinite extension of the commencement of the limitation period until the land is restored. More so, the tort of private nuisance would then be predicated on the failure of the defendants to clean up the land rather than interference by the defendant. It further results into multiplicity of assessment of damage such that a claimant could claim on Day 100 for the flooding incident as he claimed on day one.
In a layman’s terms, it seems reasonable to relate nuisance with losses and damages. However, in the legal context, nuisance is a totality of the cause of action arising from the interference of the defendant and consequent damages. Continuing nuisance in the legal context requires that the interference continue on a regular basis even though the form of interference may be similar. For this reason, the Supreme Court held that the effects of an oil leak, which one a one-off event, does not constitute continuing nuisance.
CONCERNS AND THE FATE OF ENVIRONMENTAL LITIGATION
Given that the claim was initially made within the six-year limitation period following the oil leak incident, it could be argued that the court should have exercised leniency when considering technicalities that may undermine the merits of the claim. By focusing solely on technical limitations, there is a risk of overshadowing the substantive issues related to environmental damage and its ongoing impact.
Environmental issues often involve complex, long-term and multifaceted impacts that may require a broader perspective beyond strict adherence to technicalities. This approach limits the ability of the public to seek redress for ongoing environmental harm effectively.
Alternatively, the claimant’s counsel could have chosen to forego the continuing nuisance argument and instead acknowledged that they were indeed outside the prescribed time limit. Then, they could have relied on the exceptions provided under Rule 17.4 and 19.6 of the UK Court Procedural Rules to protect their claim and seek necessary amendments. By taking this approach, they could have demonstrated an understanding of the technical limitations while still striving to pursue justice within the framework of the established procedural rules.
Considering the totality of the nuances of environmental claims, relying on the tort of nuisance to claim remedies may be a wild goose chase. Strict application of general civil procedure rules often jeopardize claimant’s chances of getting remedies even when the wrong committed by the defendant is as clear as a bell. Therefore, it is recommended that a separate body of procedural laws be established specifically for the enforcement of environmental rights and the pursuit of remedies. Such dedicated procedural laws would help address the unique complexities and ongoing nature of environmental damage cases, ensuring that legal technicalities do not unduly hinder the pursuit of justice.
JALLA V SHELL confirms that failure to clean up an oil spill is unlikely to constitute a continuing nuisance. It connotes different meanings to different groups within the oil and gas sector. With respect to litigants who are victims of pollution, the lawsuit is a reminder for them to institute proceedings promptly to avoid being statute barred. As regards oil companies, it reminds them that repeated activity causing emissions within an area can trigger claims under continuing nuisance. For the government (including the judiciary), it emphasizes the importance of the establishment of environmental rights procedural laws that would promote a more holistic and balanced approach to environmental litigation. It would allow courts to give due consideration to the broader environmental context, the rights of affected communities, and the responsibility of entities involved in causing or contributing to environmental harm. These laws could incorporate provisions for expedited proceedings, expert testimony, public participation, and access to information, all of which are essential in addressing environmental disputes effectively. This is necessary for a fair and effective pursuit of environmental remedies.
Peter Okediya is an energy law and policy analyst and a graduate of law. His works transverse the fields of oil and gas law, environmental law, sustainable finance, project and corporate finance, environmental litigation and dispute resolution. Peter is the founder of Energy Brief with Peter, a resource hub where he shares his insights and updates around the energy sector.
 The defendants are Shell International Trading and Shipping Co Ltd (“STASCO”) and Shell Nigeria Exploration Co Ltd. Both are companies within the Shell group of companies.
 Fearn v Board of Trustees of the Tate Gallery  UKSC 4,  2 WLR 339
 Section 2 of the Limitations Act 1980
 The Civil Procedure Rules 1998, Rules 17.4 and 19.6
 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127
 Section 50 of the Senior Courts Act 1981