The Supreme Court has rejected a claim that the tort of private nuisance over an oil spill refreshes each day. It was ruling in a claim for compensation for the 2011 spill at the Bonga oil field, some 120km off the coast of Nigeria. 

The leak, which occurred overnight, was stopped after about six hours. At least 40,000 barrels of crude oil leaked into the ocean. According to the 20-page judgment in Jalla and another v Shell International Trading and Shipping Co Ltd and another the oil reached the Nigerian Atlantic shoreline within weeks of the spill.

Though the limitation period under Nigerian law - the agreed applicable law - is five years, the claimants – a Mr Jalla and Mr Chujor – argued there is a ‘continuing cause of action because there is a continuing nuisance’. They issued their original claim just under six years after the spill. In April 2018, they sought to amend their claim which was ruled to be out of time, arguing that there was a continuing cause of action because oil on their land had not been removed or cleaned up.

The claim reached the Supreme Court after being rejected by the Court of Appeal. 

In lead judgment today, Lord Burrows said it was ‘wholly misleading’ to consider continuing nuisance as a ‘matter of ordinary language’. The lower courts had failed to make clear that, 'far from being unusual, a continuing nuisance in the legal sense is commonplace in respect of the tort of private nuisance'.

Describing as 'incorrect' the submission by Jonathan Seitler KC that there is a continuing nuisance because the oil is still present on the claimants’ land, Burrows said the leak was a 'one-off event'.

'There was no continuing nuisance in this case…because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land.

‘To accept Mr Seitler’s submission would be to undermine the law on limitation of actions… It is not surprising that Mr Seitler could cite no case directly supporting the position he was advocating. And while there may be no authority that directly contradicts his central submission, that submission is contrary to principle and would have the unfortunate policy consequence of undermining the law of limitation.’

The appeal, which was heard before Lord Reed, Lord Briggs, Lord Sales and Lord Burrows, was dismissed unanimously.

 

Jonathan Seitler KC, Alice Hawker, and Stuart Cribb, instructed by RBL Law Ltd, appeared for Jalla and another; Lord Goldsmith KC, Dr Conway Blake, and Tom Cornell, instructed by Debevoise & Plimpton LLP (London), for Shell International Trading and Shipping Co Ltd.

 

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