A question of timing: the failed application for extensions of time in Jalla
On 28 October 2021, the English Court of Appeal handed down (the ninth) judgment in the well-known Jalla litigation, providing useful guidance regarding the circumstances in which extensions of time may be refused.
The Jalla litigation concerned claims pursued from 2017 onwards by some 28,000 Nigerian individuals and 479 communities against Shell for losses allegedly caused by pollution from an oil spill.
A key issue in the litigation has been limitation (on which the issue of jurisdiction also effectively turned). Limitation was deemed to run from the date on which oil started to cause harm to each individual claimant – this varying depending on the claimant’s location. The claimants were therefore ordered to serve a Date of Damage Pleading (DODP) for the purposes of assessing limitation.
Service was initially due in November 2020 (Covid-19 having been expressly considered in setting this timetable). Importantly, when ordering that DODPs be prepared the Court noted, “Claimants should be under no illusions: the iterative approach to this litigation that appears to have prevailed until now must cease…they will only have one opportunity to get their case in order from now on”. Despite this, the Court subsequently ordered that service be extended to June 2021. In May 2021, the claimants sought the defendants’ agreement to a further 3.5 month extension. Consent was refused, and a one-month extension offered instead on the basis that any longer would jeopardise the limitation trial date. This was agreed by the claimants who proceeded to serve 9 DODPs (on behalf of 4 individual claimants and 5 communities) while concurrently applying for a further extension of time through to August 2021. During the hearing, the claimants accepted the best they could propose was that the DODPs would be “reformatted” to include dates of damage for approximately 900 Claimants across 6 communities. The High Court refused the extension, following which the claimants appealed to the Court of Appeal.
Grounds for appeal
The claimants relied on four grounds for appeal in arguing that the High Court judge:
- Failed to weigh in the balance that the majority of the claims would be struck out if the extension was refused;
- Should have granted a lesser extension than sought, but did not do so;
- Incorrectly concluded that the extension of time would prejudice the defendants; and
- Failed to give adequate reasons for her decision.
Grounds 1 and 3, at least, were deemed to satisfy the test for PTA.
Applicable legal principles
The Court of Appeal’s starting point was that it was vital “to uphold robust, fair case management decisions made by first instance judges” so would only interfere where regard was had to irrelevant factors or where the judge’s discretion was “wholly wrongly exercised”. Importantly, the Court noted that, despite the Denton case not being strictly applicable, because the claimants’ application had been issued (just) in time, the principles set out in that case were relevant because the claimants, “were throwing themselves on the mercy of the court in order to prevent the vast majority of their claims from coming to a shuddering halt…the general principles identified in Denton v White are applicable, at least by analogy, when considering the application of the over-riding objective to this case”.
Ground 1: Draconian effect of not extending time
The Court particularly focused on this ground of appeal and rejected the claimants’ submissions that the first instance judge had failed to appreciate the fundamental consequences of her judgment. The Court also found that all relevant matters had been considered. It was further held that the claimants’ new proposals (where dates of damage would be unsupported by evidence) would represent a “complete negation” of the Court’s previous order, which outweighed the draconian consequences of the High Court’s decision.
In relation to the overriding objective, the Court applied the three-stage test from Denton: i) whether the failure was serious and significant; ii) whether there was a proper explanation for the delays; and iii) consideration of all the circumstances. On the first stage, the Court found that there was, “no doubt” the failure was serious and significant. When analysing the second stage, it also held that there was no proper explanation for the delays. In relation to the third stage, the Court noted that the litigation had not “been conducted efficiently or at proportionate cost” and described it as “bedeviled by problems”. The Court also criticised the claimants’ approach in agreeing the defendant’s one-month extension, only to apply for a further extension at the point of service.
Ground 2: Granting of a shorter extension
In dealing with this ground, the Court held there were three answers to the claimants’ submissions. Firstly, at no time had the claimants formally asked the judge for any lesser extension of this kind. Secondly, the reformatted schedules would not, in fact, have made any meaningful difference. This was because without any other evidence to support the relevant dates, the dates on the schedules could never have been proved. Finally, further delay in providing information in relation to the dates of damage would have necessarily led to adjournment of the trial of limitation issues.
Ground 3: No Prejudice to the Defendants
The Court rejected the third ground for appeal, citing four factors:
- The claimants’ case that damage happened later inland could not get off the ground without provision of the DODPs;
- The dates of damage had to be properly set out for the defendants to see the case they had to meet;
- The defendants raised defences based on denial that the oil alleged to have caused the damage related to their facility. The dates of damage were required to assess this defence; and
- Further delay would lead to adjournment of the limitation trial.
Ground 4: No reasons given for rejection of the claimants’ arguments
The Court held this ground was effectively, “parasitic on the previous grounds of appeal, particularly ground 1”. Notwithstanding this, the Court noted that, to the extent adequate reasons were not given, the Court of Appeal had now set out its own reasons for why any re-exercise of judicial discretion would lead to the same result.
The judgment highlights the practical challenges posed by pursuing complex, mass tort litigation involving numerous claimants. The decision also highlights that, in the post-Denton world, parties to litigation cannot rely on the courts’ indulgence in granting repeated extensions of time. The claimants’ inability to demonstrate that efforts had been taken to comply with the court’s order and to formulate a coherent and proportionate strategy for the sensible management of the litigation were key matters taken into account by the Court of Appeal in this case.