Contamination and continuing nuisance

Limitation can be a difficult issue in many cases involving contamination of the environment, both in terms of when the contamination occurred and was discovered (which may be very different) and the continuing and persistent nature of many forms of contamination.  The issue has recently been addressed by the TCC in Jalla v. Royal Dutch Shell Plc [2020] EWHC 459 (TCC); [2020] 3 WLUK 1.  This involved a claim by some 27,000 Nigerian claimants and 457 communities in relation to an oil spill from the transfer of oil from an offshore platform to a ship, which affected a wide area of coastline and hinterland in the Niger Delta.  The spill occurred in December 2011. Estimates of the quantity varied but was taken by the court to be over 40,000 barrels, described by the claimants as one of the largest spills in the history of Nigerian oil exploration. It was alleged that oil from the spill had devastated the shoreline and caused serious and extensive damage to the claimants’ land and water supplies, and to the fishing waters in and around affected villages; and that, because it has not been cleaned up properly, it continues to cause damage.

Proceedings were originally brought against Royal Dutch Shell, but this was not the correct defendant. Proceedings against the relevant Shell companies were not commenced until 2018.  In 2019 there was an application for significant amendments to the particulars of claim, constituting a major re-vamp of the claim.  The defendants raised issues of jurisdiction and limitation.  On limitation six years had expired from the spill before proceedings were commenced, but the claimants raised two points in response: (i)  time did not start to run against any of them until 2017 because of deliberate concealment by the defendants until then of a document known as the FUGRO Report listing soil and water samples taken in early 2012; (ii)  the defendants were in breach of continuing duties in tort because of their failure to clean up or remediate the consequences of the original spill. The claimants submitted that, as a result, “a fresh cause of action accrues each day so long as the pollution and/or nuisance continues”. Further, at the hearing an entirely new argument was advanced for the claimants, which had neither been pleaded or included in the skeleton argument, that at least some of the claimants may have suffered no actionable damage until after 4 April 2012, so that time would not have started running either in nuisance or in negligence until then, with the result that the claim was within the limitation period as it affected those claimants.

As this was not a full trial the court had to do the best on the evidence available to ascertain when the damage had occurred.  At para. [59] the court held:

On the basis of the information before the Court… it is safe to conclude without conducting a mini-trial that if the oil from the December 2011 Spill was responsible for the damage of which the Claimants complain, then oil reached the shoreline within a few days of 24 December 2011. Evidently, some parts of the shoreline included within the claims in this litigation were more remote than others from the [spill] and so landfall would not all have occurred at the same time. However, it is clear beyond reasonable argument to the contrary that actionable damage as alleged would have been suffered along most if not all of the affected shoreline within weeks rather than months of the December 2011 Spill … This does not mean that all Claimants living and working along the shoreline were affected as soon as oil first hit land; but the substantial quantities of polluting oil alleged by the Claimants strongly support the conclusion that, where oil hit a particular stretch of the shoreline, many if not all Claimants living and working in that area would have suffered one or more of the effects of which they now complain within a short time. Even without conducting a mini-trial, therefore, the Court can be confident that actionable damage sufficient to start time running in negligence and/or nuisance occurred for many Claimants before 4 April 2012. 

Continuing nuisance

The point of most general importance to emerge from the judgment is the “continuing nuisance” issue. The claimants’ submission was that “the ongoing and unremedied pollution from the December 2011 Spill that continues to blight their land is a continuing nuisance” so that a fresh cause of action accrued each day as damage or interference with the use of land occurred.  The court set out the position on such nuisances as follows:

  1. There is no doubt that a nuisance can be a “continuing” one such that every fresh continuance may give rise to a fresh cause of action. The classic example of a continuing nuisance is provided by Battishill v Reed (1856) 18 CB 696where the Defendant built (and subsequently kept in place) an erection higher than the Plaintiff’s and, having removed tiles from the Plaintiff’s eaves, had placed his own eaves so as to overhang the Plaintiff’s premises. This nuisance was held to continue from day to day. “Continuing” a nuisance is also used in a different context to describe the circumstances in which responsibility for a nuisance will be imposed upon an occupier of land who, with knowledge or presumed knowledge of its existence, fails to take reasonable means to bring it to an end when he has ample time to do so. This usage is contrasted with “adopting” a nuisance by making use of an erection or artificial structure which constitutes the nuisance: see Sedleigh-Denfield v O’Callaghan [1940] AC 880 . As Lord Atkin pointed out (at 896) there is a risk of imprecise language in referring to a state of affairs that has the potential to cause damage as itself being a nuisance. What is clear is that the cause of action in nuisance is dependent upon the occurrence of damage.

The claimants had relied upon Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 as authority for the proposition that failure to remediate a single event can be a continuing nuisance for this purpose. However, the court rejected that argument:

  1. This reasoning does not assist the Claimants. The … passage shows the determining feature of the case, namely that the continuing presence of the tree roots gave rise to a continuing need for underpinning which would have been avoided if the highway authority had abated the (continuing) nuisance at any time by removing the tree (and, hence, the effect of its roots). The highway authority became responsible for that continuing state of affairs on being notified of the problem and when it declined to abate the nuisance. That is analogous to the person who builds and leaves a structure on or overhanging his neighbour’s land – the classic “continuing” nuisance in this usage. It is quite different from the “normal” case where there is a release (be it of water, gas, smells, or other detrimental things) and that release causes damage or interferes with user of land. In the latter case, there is one occurrence of nuisance for which all damages must be claimed at once even if the consequences of the nuisance persist. So, for example, if in Sedleigh-Denfieldthe escape of water had formed a lake which caused damage to the plaintiff’s land over a period of weeks, that would have been one occurrence of a legal nuisance despite the extent and duration of the consequential damage, for which all damages should be claimed at once. In the present case there was one escape of oil, for which the Claimants seek to impose liability upon [the defendant]. It is alleged that the escape has caused the inundation of the Claimants’ land and other heads of damage. Nuisance by polluting oil is no different in principle from nuisance by escape of water, gas smells or other polluting agents. It is in that respect a “normal” case and there is no basis, either in authority or in principle based upon concepts of reasonableness or control to describe the nuisance as “continuing” in the sense contended for by the Claimants or as considered in Delaware Mansions . To treat the present escape as giving rise to a continuing nuisance in the sense asserted by the Claimants would, in my judgment, be a major and unwarranted extension of principle.

The court concluded that, for these reasons, the limitation period should not be extended by reference to the concept of a continuing nuisance. The claimants’ causes of action accrued when each claimant first suffered sufficient damage for the purposes of a claim in nuisance.

The point is one of general importance in many nuisance cases but the ostensibly clear cut reasoning of the judge may on close examination prove to be somewhat confused in its reference to smells and other “amenity” type nuisances which interfere with the enjoyment of land. It is in their nature that these will often be intermittent and continuing nuisances, though of course the limitation period in terms of damages will run from each incident or relevant period of time.  So if someone has suffered odours or noise amounting to a nuisance for 8 years, they can claim for the last six.  The judgment is however important on cases where there has been a release of a pollutant which has affected land, and where limitation runs from the time the initial damage occurred.

In the Jalla case, there was actually no evidence on when damage occurred for individual claimants, of whom there were thousands.  For those living some considerable distance inland, it might have been the case that there was a delay before the oil reached them. The court said that “The only assumption that can safely be made is that the further from the shoreline and the more remote in time it may ultimately be alleged that damage was first suffered, the greater will be the need for the case to be properly pleaded and for evidence, both general and specific, to sustain a claim that the individual Claimants suffered actionable damage ….”. Beyond that it was not possible to determine which Claimants suffered actionable damage when.

In a later procedural judgment [2020] EWHC 738 (TCC) the judge refused permission to appeal on the continuing nuisance point, and ordered the claimants to serve a “Date of Damage Pleading”, setting out the Claimants’ case on when all relevant accruals of damage occurred with sufficient particularity to enable the Defendants to know the case that they have to meet.

Deliberate concealment

A more fact specific issue was whether the limitation period should be extended on the basis of deliberate concealment by the defendants.  This however also has some potential general relevance, as it is quite often the case that a defendant may have reports identifying contamination, of which a claimant is unaware.

On the basis of expert evidence, the judge found that the touchstones for the application of the doctrine of deliberate concealment under Nigerian Law included that (a) the injured party must be ignorant of the existence of a tortious act having been committed against him and (b) there must be deliberate concealment of the facts that would alert the injured party to the existence of a tortious act having been committed against him. That was in his judgment “entirely consistent with English Law”.   Two principles were important in addressing this issue. First, what must be concealed must be a fact relevant to the existence of the injured party’s cause of action, not simply evidence that will strengthen the injured party’s claim and second, where deliberate concealment is demonstrated, it will only prevent time running against the defendant who carried it out. There could be no justification for depriving a defendant of a limitation defence that would otherwise have accrued because someone else (not acting on his behalf or as his agent) has deliberately concealed relevant facts from the claimant.

On these points, the argument of deliberate concealment failed. Furthermore, the claimants had not shown any basis for the existence of a duty on the defendant to disclose a copy of the FUGRO Report (assuming for these purposes that it had a copy) either to the claimants or to the Nigerian Authorities. Following the litigation, the obligations of the parties had been governed by the Court’s procedural rules and, because of the pace at which things have progressed, no obligation to give either specific or general disclosure had arisen. Given that what the claimants complained of was the omission to disclose the document, the absence of any duty to do so was fatal to the claimants’ submissions. Also, the FUGRO Report was not “a fact relevant to the Claimants’ right of action” and withholding of the report (if it were to be proved) would not amount to concealment of “the right of action” within the meaning of the relevant statutes: “At its highest it is evidence that may enhance the Claimants’ claim.”

Reference to text: paras. 14-60 – 14-61.



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