The Court of Appeal has allowed a challenge against a declaration that claims against Shell over oil spills in the Niger Delta region in Nigeria were 'global claims', finding that the right of a litigant to bring a claim and determine how it is proved 'should be respected in all normal circumstances'.

Alame and others v Shell PLC & Anor centres on oil spills which caused environmental damage including water and ground contamination which has ‘blighted’ the area. The claimants seek injunctive relief from Shell to carry out remediation as well as damages. 

In lead judgment, Lord Justice Stuart-Smith, with whom Lord Justice Males and Lord Justice Bean agreed, dismissed Shell’s appeal against an order which allowed the claimants to re-amend their pleading. On Shell’s first ground of appeal, the judge was ‘plainly right to regard the proposed amendments as providing further particulars of the existing claims’. It was ‘plain that the Court has long since recognised that the claimants’ case was not limited to the 10 originally specified spills’, the judgment said.

Considering the claimants’ appeal against the declarations made in March 2024 that the claimants’ claims were to progress on the basis that they are global claims, the judgment acknowledged the claimants ‘have made absolutely clear that they do not advance a “global claim”’.'

He said: ‘No judge or court is entitled to require a party to establish their case by a particular method. A party should be permitted to formulate their claims as they wish, not forced into a straitjacket (or corner or cul-de-sac) of the judge’s or their opponent’s choosing.

‘Unless and until the point is reached where a claim is to be dismissed or stayed, the right of a litigant to bring the claim and the freedom to determine how it intends to prove its claim should be respected in all normal circumstances.’

Setting aside the first declaration, the appeal judge added: ‘It is easy to see that there are formidable logistical and evidential difficulties for the claimants to overcome; but that is the route they have chosen. It is not for the court to force them to go down what they perceive to be the cul-de-sac of “global claims” against their will.’

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The judgment highlighted the ‘circular procedural wrangle’ in the case as the claimants’ argue they cannot progress the pleading of their case to a point of sufficient particularity without further information from the defendants. The defendants say they cannot be required to provide further information unless the claimants achieve greater particularity about their case.

The judgment said there was a ‘major inequality in access to information’ and ‘despite the claimants having the benefit of legal representation of the highest calibre, there is a substantial inequality of arms in the litigation’ and the claimants’ evidence demonstrated ‘significant inequality of arms in access to information.’

Referring to the financial inequality between parties, the judgment said: ‘Claimants cannot fund the litigation out of their own resources and have to rely upon their lawyers being prepared to act on CFA (conditional fee agreement) terms.

‘The inequality that flows from this is best illustrated by the £7 million that the claimants have had to expend on the SOIs [schedule of information]. It is a very substantial sum for the claimants; but it would be relatively (I emphasise the word “relatively”) trifling for the defendants as part of a global organisation such as Shell.’

He said the court had an obligation ‘to ensure…parties are on an equal footing and can participate fully in the proceedings’.

He added: ‘This is a paradigm example of a case which can only be progressed by reference to lead cases and that the co-operative selection of lead cases by the parties (with the intervention of the Court if required) is an essential step that is required to break the circularity of the present impasse.’

The defendants' appeal was dismissed and the claimants' appeal against declarations made was allowed.

Leigh Day international department partner Dan Leader said: ‘This is a critical judgment for environmental claims going forward. Now the “Global Claims” test has been dismissed, claimants will be able to bring complex environmental claims arising from multiple and repeated polluting events without being asked to prove the impossible.’