Jalla and another v Shell International Trading and Shipping Co Ltd and another

Nuisance – Limitation – Continuing private nuisance – Appellants alleging respondents responsible for oil spill – Appellants bringing action in private nuisance against respondents – Appellants seeking to amend claim form and particulars of claim over six years after oil spill – Issue arising whether claim statute-barred – Appellants arguing that continuing cause of action in nuisance existing as undue interference with land continuing – Whether continuing private nuisance and continuing cause of action – Appeal dismissed The appellants were two Nigerian citizens. The respondents were companies within the Shell group. The Bonga oil field was located approximately 120km off the coast of Nigeria. On 20 December 2011, an oil leak occurred during a cargo operation, caused by a rupture in one of the flowlines when crude oil was being transferred to a waiting oil tanker. The equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The respondents were alleged to be liable for the operation behind the oil spill. The appellants alleged that the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline where they claimed it had a devastating impact and had not been removed or cleaned up. The respondents argued that the spill was successfully contained and dispersed offshore and did not impact the shoreline. However, it was assumed for the purposes of the appeal that some oil had reached the shoreline within weeks of 20 December 2011. The appellants sought to amend their claim form and particulars of claim over six years after the oil spill, which gave rise to a question whether the claim was statute-barred. The appellants argued that so long as undue interference with their land was continuing, because the oil had not been removed or cleaned up, there was a continuing cause of action for the private nuisance that was accruing every day. The appellant’s argument was dismissed by the High Court: [2020] EWHC 459 (TCC) and the Court of Appeal: [2021] EWCA Civ 63. The appellants appealed to the Supreme Court. Held: The appeal was dismissed. (1) In general, the tort of private nuisance was committed where the defendant’s activity, or a situation for which the defendant was responsible, unduly interfered with (or caused a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land. The undue interference with the use and enjoyment of the claimant’s land would nearly always be caused by an activity or state of affairs on the defendant’s land so that the tort was often described as one dealing with the respective rights of neighbouring landowners or occupiers. But the creator of the nuisance could be sued whether that person still had (or ever had) any interest in the land from which the nuisance emanated. Moreover, it was assumed for present purposes that the tort of private nuisance might be committed where the nuisance emanated from the sea; and that the tort of private nuisance might be committed by a single one-off event, such as the oil spill here. As with negligence, and in contrast to trespass to land, private nuisance was actionable only on proof of damage and not per se. That requirement was satisfied for private nuisance by establishing the undue interference with the use and enjoyment of the land. That included physical damage to the land itself and damage to buildings or vegetation growing on the land. But commonly there would be an undue interference with the use and enjoyment of land, as by the impact of noise, smell, smoke or vibrations being overlooked, even though there was no physical damage to the land or buildings or vegetation: Sedleigh-Denfield v O’Callaghan [1940] AC 880, Lawrence v Fen Tigers Ltd [2014] 3 EGLR 71; [2014] EGILR 47 and Fearn v Board of Trustees of the Tate Gallery [2023] EGLR 14 considered. (2) In principle, a continuing nuisance was one where, outside the claimant’s land and usually on the defendant’s land, there was repeated activity by the defendant or an ongoing situation for which the defendant was responsible which caused continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference might be similar on each occasion, but the important point was that it was continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and overlooking were continuing nuisances where those interferences were continuing on a regular basis. The cause of action therefore accrued afresh on a continuing basis.  In the present case, the appellants’ argument would extend the running of the limitation period indefinitely until the land was restored. The tort of private nuisance would also be impliedly converted into a failure by the respondents to restore the appellants’ land. There was no continuing nuisance because, outside the appellants’ land, there was no repeated activity by the respondents or an ongoing state of affairs for which the respondents were responsible that was causing continuing undue interference with the use and enjoyment of the appellants’ land. The leak was a one-off event or an isolated escape. The cause of action accrued and was complete once the appellants’ land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land.   (3) The facts of the present case were distinguishable from a tree root case such as Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] PLSCS 226; [2002] 1 AC 321. In that case, in contrast to this, there was an ongoing situation outside the claimant’s land, constituted by the living tree and its roots, for which the defendant was responsible and which, by further abstraction of water through the encroachment of the roots, caused continuing undue interference with the use and enjoyment of the claimant’s land. To accept the appellants’ argument would be to undermine the law on limitation of actions, which was based on a number of important polices principally to protect defendants but also in the interests of the state and claimants, because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up: see Law Commission Consultation Paper No 151, Limitation of Actions (1998) paragraph 1.22 – 1.38. The appellants’ submission was contrary to principle and would have the unfortunate policy consequence of undermining the law of limitation.  Jonathan Seitler KC, Alice Hawker and Stuart Cribb (instructed by RBL Law Ltd) appeared for the appellants; Lord Goldsmith KC, Dr Conway Blake and Tom Cornell (instructed by Debevoise & Plimpton LLP) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Jalla and another v Shell International Trading and Shipping Co Ltd and another