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PropertyFriday 12 May 2023

Supreme Court Decision on Oil Spill Continuing Nuisance Appeal

On 10 May 2023, the Supreme Court handed down judgment in Jalla & Anr v Shell International Trading and Shipping Company & Anr [2023] UKSC 16, an appeal concerning the law of continuing private nuisance.

The Claimants, who live and own property by or in the hinterland of the Nigerian Atlantic shoreline, brought a claim against various entities in the Royal Dutch Shell group of companies in respect of an oil spill that occurred in the offshore Bonga oil field in late 2011 before the English High Court. The Bonga oil spill comprised approximately 40,000 – 42,500 barrels and was one of the largest offshore oil spills in Nigerian oil exploration history.

The Defendants contested the jurisdiction of the English High Court over this claim on the basis, amongst other things, that the Claimants’ claims against the English anchor defendant were time-barred.

At first instance, Stuart-Smith J (as he then was) ruled that, subject to questions of limitation, the English Court had jurisdiction to try the claims. However, he rejected the Claimants’ argument that fresh causes of action continued to accrue on the basis that the interference with their land by the ongoing presence of crude oil from the Bonga oil spill was a continuing nuisance.

The Claimants’ appeal to the Court of Appeal was dismissed by Coulson, Newey and Lewison LJJ on 27 January 2021, but permission to appeal was granted by the Supreme Court.

The issue before the Supreme Court was whether the continued presence of crude oil from the Bonga Spill could amount in law to a continuing nuisance giving rise to fresh causes of action each day, so as to defeat the Defendants’ limitation defence to their claims in nuisance.

Lord Burrows rejected the Claimants’ arguments and dismissed their appeal. He held that in general terms, a continuing nuisance requires that there be, outside the claimant’s land and usually on the defendant’s land, 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. That test was not satisfied on the facts alleged by the Claimants where the leak constituting the source of the nuisance had been turned off after c. 6 hours.

Separately, Lord Burrows also refused the Defendants permission to cross-appeal on the questions whether there could in law be a cause of action in private nuisance at all where the nuisance emanates from the sea, or where it emanates from a single one-off event such as an oil spill.

Read the full judgment

Jonathan Seitler KC and Alice Hawker acted for the Claimants/ Appellants, along with Stuart Cribb of Essex Court Chambers.

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