Inequality of “harms” and the cautionary tale of Jalla - Supreme Court decision
On 10 May 2023 the Supreme Court rejected an appeal in the high-profile Jalla action against Shell. In doing so, it offered valuable guidance on the correct interpretation of the concept of continuing nuisance and how that interacts with limitation.
On 20 December 2011 a leak occurred at the Bonga oilfield, 120km off the Nigerian coast, while oil was being transferred onto a tanker. This resulted in an estimated 40,000 barrels of crude oil spilling into the ocean. The claimants, a group of Nigerian citizens, duly brought an action before the English courts in private nuisance against two corporate defendants from within the Shell group. The group allege that the oil drifted onshore and has caused catastrophic damage to their land and associated farming and fishing industries.
The claimants initially issued their claims shortly before the sixth anniversary of the oil spill. Accordingly, when they sought permission to amend their pleadings and substitute the defendants, limitation became a key issue. That led to the claimants relying on their position that an alleged failure to clean up the oil spill constituted a continuing nuisance, such that the statutory 6 year limitation period was continually renewed (meaning that the amended pleadings were still within time). That argument was rejected by the lower courts and formed the substance of the appeal before the Supreme Court.
What is a continuing nuisance?
Helpfully, the Supreme Court first sought to clarify the concept of a “continuing nuisance”. The Court noted that the legal concept of a continuing nuisance is distinct from the idea that, as a matter of ordinary language, the effect of the damage still being present is a ‘continuing problem’.
Instead, the Court confirmed that a continuing nuisance arises where, outside a claimant’s land, there is “repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible” which unlawfully interferes with that claimant’s use and enjoyment of their land. The interference may be similar, but it must be continuing “day after day or on another regular basis”. For example, in the recent Fearn case involving the impact of the Tate Modern viewing platform on residential property, the daily “overlooking” of the flats is a continuing nuisance. The key questions are: what act gives rise to the cause of action, and is that action being repeated?
The Court considered a range of precedents in the course of its judgment, some of which dated back to the 1800s. Firstly, it analysed Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127. In that case, the defendant had the right to extract coal from underneath the claimant’s land. This caused subsidence to the claimant’s land in 1868, meaning the defendant had committed the tort of private nuisance. No further excavation was carried out, but a second instance of subsidence occurred in 1882. The Lordships held that this constituted a new cause of action because the tort only became actionable on proof of damage.
The Court also looked at the well-known case of Delaware Mansions Ltd v Westminster City Council  UKHL 55 where the roots of a plane tree had encroached onto the Claimant’s land and caused cracks to the building, which ultimately required underpinning to the tune of over £500,000. The Court distinguished this case by explaining that it involved a living tree and its roots (for which the defendant was responsible) and which caused, “by extraction of water through its encroaching roots” continuing undue interference with the claimant’s land. Therefore, the cause of action accrued afresh from day to day.
The Court’s analysis in Jalla
The Court noted that on the facts in Jalla, accepting the claimants’ arguments would result in the limitation period being extended indefinitely until their land was restored. It would also “impliedly mean that the tort of private nuisance would be converted into a failure by the defendant to restore the claimant’s land”. The Court was also concerned about the impact that repeatedly arising causes of action would have on the assessment of damages.
The Court therefore held that, in this case, there was no continuing nuisance. It decided that, outside the claimants’ land, there was no repeated activity which was causing continuing undue interference with the use and enjoyment of the claimants’ land. Instead, the spill was a “one-off event or an isolated escape” which had ceased after six hours and the leaked oil reached the claimants’ land within a matter of weeks: “the cause of action accrued and was complete once the claimants’ land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land”. Darley was distinguishable because it involved a separate instance of subsidence causing “fresh damage”. In this case, it was the same ongoing damage, “by reason of the oil still being on the claimants’ land”.
The Court further held that to find otherwise would, “undermine the law on limitation of actions – which is based on a number of important polices principally to protect defendants but also in the interests of the state and claimants”.
The Supreme Court’s judgment may be seen by some as harsh, where the claimants allege that the oil continues to have a devastating impact on their land and livelihoods and particularly in the absence of any attempt to remove or clean up the oil. It is now clear to practitioners, however, that in English law ‘continuing harm’ is not the same as ‘continuing nuisance’ and the focus in deciding continuing nuisance cases will be on the relevant act or omission. The case also serves as a reminder to claimant teams to keep statutory limitation firmly in mind in the context of any remediation efforts promised by prospective defendants.
It is important to be aware that the need to frame the Jalla claim as continuing nuisance arose only because of the case-specific limitation issues. While the Supreme Court’s guidance on continuing nuisance will shape the course of claims for long-term incidents, this case does not impact claims brought within the limitation period in relation to single incidents. These claims will continue to be brought forward in the same way as before. In the wake of this judgment claims relating to ongoing damage will also still continue to be made where appropriate, with the guidance from the Jalla decision taken into account when they are pleaded.
The Jalla case has been covered in previous Perspectives:
A question of timing: the failed application for extensions of time in Jalla
The Court of Appeal’s latest on representative actions in Jalla v Shell: To what extent will “representative actions” be permitted in environmental claims?
The ‘nuisance’ of an oil spill and the issue of limitation
With thanks to Lily Parmar and Feroza Ahmad for their invaluable assistance in drafting this article.