Louise Clark looks at a Supreme Court decision on what constitutes a continuing nuisance.
Key points
- A private nuisance is committed where the defendant’s activity or omission unduly interferes with the claimant’s use of its land
- It is actionable only on proof of damage, but this need not be physical damage
- A continuing nuisance requires a repetition of the activity or omission
In Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] PLSCS 80, the Supreme Court has rejected an appeal against a decision that a one-off oil spill was not a continuing nuisance and has explained the distinction between a one‑off and a continuing nuisance.
The background
The case concerned claims by two Nigerian citizens against companies within the Shell group, in respect of a major oil spill which occurred on 20 December 2011. The oil spill occurred overnight during a cargo operation at an offshore installation in the Bonga oilfield, 120km off the coast of Nigeria.
The spill resulted from a rupture in one of the flowlines when crude oil was being transferred onto an oil tanker. The equivalent of at least 40,000 barrels of crude oil leaked into the ocean over a six-hour period.
The claimants alleged that the oil migrated to the Nigerian Atlantic shoreline where it has had a devastating impact on two states in the Niger Delta. The oil had not been removed or cleaned up by the defendants. The defendants maintained that the spill was successfully contained and dispersed so that it did not affect the shoreline but accepted for the purposes of determining the legal issue on appeal that some oil had reached the shoreline within weeks of the leak.
The claimants brought a claim in private nuisance for undue interference with the use and enjoyment of land owned by them which they claimed had been affected by the oil spill. The claim was issued on 13 December 2017, just under six years after the oil spill. In April 2018 the claimants purported to amend their claim including changing one of the parties being sued. Three further applications to amend were made in 2019.
The defendants submitted that the amendments were being sought after expiry of the six-year limitation period under section 2 of the Limitation Act 1980. The claimants argued that, as long as undue interference with their land continued because oil had not been removed or cleared up, there was a continuing cause of action in private nuisance that accrued afresh from day to day. Their claim was rejected both at first instance and in the Court of Appeal.
The question for the Supreme Court was whether there was a continuing nuisance and hence a continuing cause of action.
The law
Private nuisance is committed where the defendant’s activity, or action for which it is responsible, unduly interferes with the use and enjoyment of the claimant’s land. It is actionable only on proof of damage. Such proof includes physical damage to land, buildings or vegetation, but also the impact of noise, smell, smoke, vibrations or visual intrusion where there is no physical damage.
A continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which it is responsible, which causes continuing undue interference with the claimant’s land. The interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis.
An example of a continuing nuisance is Delaware Mansions Ltd v Westminster City Council [2002] UKHL 55, where roots from a tree on an adjoining pavement had caused cracks in the claimant’s building. The claimant was entitled to recover from the defendant highway authority the cost of carrying out underpinning works. The continuing presence of the tree roots gave rise to a continuing need for underpinning that would have been avoided if the defendant had removed the tree.
Smoke, noise, smells, vibrations and visual intrusion are also continuing nuisances. The cause of action therefore accrues afresh on a continuing basis, which explains why the standard remedy in such circumstances is an injunction.
This is very different from the case where a single escape occurs. In those circumstances, all damages must be claimed at once even if the consequences of the nuisance persist.
There is no authority for the proposition that a one-off event or isolated escape can give rise to a continuing nuisance.
The decision
The Supreme Court decided that there was no continuing nuisance in this case because the oil was still present on the claimants’ land and had not been removed or cleared up.
If this was the case, it would mean that a claimant’s land, flooded by an isolated escape would constitute a continuing nuisance with a fresh cause of action accruing day by day for as long as the land remained flooded. This would extend the limitation period indefinitely until the land was restored. It would also impliedly convert the tort of private nuisance to failure by the defendant to restore the claimant’s land.
There was no continuing nuisance in this case – or in the one-off flood referred to above – because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which they were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land.
The leak was a one-off event or an isolated escape. The cause of action accrued and was complete once the claimants’ land had been affected by the oil.
Louise Clark is a property law consultant and mediator
