Summary

The Court of Appeal has examined when a common law nuisance can be said to be “continuing” and therefore qualify for a more generous application of the limitation rules.  The judgment is of relevance to landowners, developers, operators of industrial processes, infrastructure companies and insurers.

Jalla and others v Shell International Trading and Shipping Company Limited and Shell Nigeria Exploration and Production Company Limited ^[1] is a claim involving over 27,000 individuals and 457 communities who live on the coast of Nigeria. 

On 20 December 2011, there was a leak from some offshore oil infrastructure.  The leak only lasted for a few hours.  The oil that escaped started to be washed up on shore a few days later.  The claimants brought a claim based in the torts of negligence, nuisance and Rylands v Fletcher.  They alleged that the oil devastated the shoreline, caused serious and extensive damage to land and water supplies and fishing waters.  The claimants also alleged that, because it has not been cleaned up properly, the oil continues to cause damage.

The case is one of a number of claims in recent years where overseas claimants are seeking redress in the UK courts against an overseas company (in this case Shell Nigeria Exploration and Production Company Limited (“SNEPC”)) in respect of overseas events.  The ability to do this depends on there being at least one “anchor defendant” domiciled in the UK (in this case Shell International Trading and Shipping Company Limited (“STASCO”)) against which a valid claim on the facts also exists.

A key issue for resolution at an early stage related to limitation.  In particular, the proceedings had not been commenced against STASCO until April 2018, which was more than six years after the oil washed up on shore and damage was first suffered.   The defendants therefore argued that the claim against SATSCO failed on limitation grounds because the cause of action accrued more than six years before the case was commenced.  Furthermore, without a valid claim against the “anchor defendant”, the defendants argued that the English Courts should not be hearing the dispute at all.

The claimants argued that, at least in so far as common law nuisance was concerned, the limitation period did not end six years after the oil washed up on shore.  They argued that because the spill had not been properly remediated, the nuisance was a “continuing nuisance” and a fresh cause of action arose every day that this situation persisted. This interpretation meant that the claimants were at liberty to claim against STASCO for nuisance suffered in the six year period running up to the commencement of proceedings.

The High Court did not accept the claimants view that the claimants were suffering from a “continuing nuisance”. Accordingly, the vast majority of claims were statute barred.  The claimants appealed.

Even though this was technically a matter governed by the law of Nigeria, the Court of Appeal reviewed all of the key English authorities on the concept of “continuing nuisance”.  On 27 January 2021, it held very firmly that what the claimants had suffered and were seeking redress for was not a “continuing nuisance”.  It agreed with the High Court that the limitation period in relation to STASCO had already terminated for the great majority of claimants when they commenced their claims.

The Court of Appeal confirmed that a continuing nuisance where a fresh cause of action arises every day is one where the state of affairs which creates the nuisance is allowed to continue, not where the damage is allowed to continue.  Here, the state of affairs (i.e. the leak) was quickly terminated and was not allowed to continue.

Commentary

The Court of Appeal’s decision is a blow for the claimants.  Perhaps they will appeal.  If they do not, many claimants will now have to drop out, and it remains to be seen whether and how the remaining claimants will take the remaining cases forward.

More generally however, the case is relevant to anyone with an interest in the law governing liability to neighbours for harm caused by noise, dust or other air pollution, vibration, or spills into surface/ground water.  This includes landowners, developers, operators of industrial processes, infrastructure companies, and insurers.

The following points in relation to limitation in these types of environmental case emerge from, or are reinforced by, the Court of Appeal judgment: 

• Where damage or harm to a neighbour results from a single or one off event (like the spill of short duration in this case), a neighbour must bring a claim in tort within six years of the date the neighbour first suffered damage or harm. If the neighbour does not do this, the claim is susceptible to challenge on limitation grounds.
• This six year deadline is not extended just because the impacts from the one off event are not remediated and harm and damage therefore continues long after the event took place.
• It does not matter for limitation purposes how much time elapsed between the one-off event and the occurrence of the damage or harm.
• Nuisance may not be the appropriate tort under which to claim for the harm caused by a single or one off event. Negligence or Rylands v Fletcher are more appropriate.
• Where the thing that gave rise to the harm is a state of affairs that was allowed to continue over time rather than a single or one off event, the position is different. As well as negligence and Rylands v Fletcher, tort of nuisance is relevant here. Such a state of affairs can be said to be a “continuing nuisance”. 
• A “continuing nuisance” has the potential to cause damage or harm over an extended period, just like a one off event. However, for limitation purposes, a continuing nuisance is treated differently to a one off event.  Where there is a “continuing nuisance”, a fresh cause of action arises every day that the state of affairs persists and causes harm or damage to the neighbour.  In other words, every day is treated as a one off event in its own right. 
• The effect of this is that a neighbour suffering from an ongoing nuisance can bring a claim long after he/she started to suffer harm and damage, but the claim can only be in respect of damage and harm suffered in the six year period prior to the claim being made. If the neighbour does not claim until more than six years have elapsed since he/she last suffered harm/damage from the continuing nuisance, the claim is susceptible to challenge on limitation grounds.

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[1]                   [2021] EWCA Civ 63