In the recent decision of Jalla and another v. Shell International Trading and Shipping Co Ltd and another,[1] the UK Supreme Court held that a one-off oil spill did not represent a continuing nuisance regardless of the continued presence of the oil on the claimants’ land.
Background
This case concerned an oil spill which occurred off the coast of Nigeria in December 2011, in which an estimated 40,000 barrels of crude oil leaked over a period of 6 hours.
The claimants, Mr Jalla and Mr Chujor, are Nigerian citizens. They brought a claim in the tort of private nuisance for undue interference with the use and enjoyment of their land, which they alleged had been severely impacted by the oil spill. The defendants were companies in the Shell group.
Procedural history and limitation
The claimants issued their claim in December 2017, just under six years after the spill. They originally brought the claim against Shell International Limited. However, in 2018, they purported to replace Shell International with Shell International Trading and Shipping Company Limited (STASCO) as first defendant and then made various applications to amend their claim.
STASCO submitted that, as the amendments sought were outside the six-year limitation period for tortious claims (being more than six years after the spill), they were time-barred. In response, the claimants submitted that, as the oil was still present on their land, it represented a continuing nuisance. Accordingly, they argued, their cause of action accrued fresh each day that the oil was not cleaned up.
Both the High Court of England and Wales and the Court of Appeal rejected the claimants’ arguments and determined that there was no continuing nuisance. The courts held that the cause of action had accrued once the oil reached the claimants’ land, that this was a one-off event and that, accordingly, the limitation period did not start afresh each day. The claimants’ amended case was, therefore, time-barred.
The claimants appealed to the Supreme Court.
The Supreme Court’s decision
The Supreme Court dismissed the appeal, thus confirming the lower courts’ decision that the six-year limitation period had expired. In doing so, it considered the question of what constitutes a continuing nuisance and how that definition applied to this case.
What constitutes a continuing nuisance?
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 the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land’ (emphasis added). Therefore, smoke, noise, smells, vibrations and even overlooking can amount to continuing nuisances where those interferences are continuing on a regular basis. For as long as the nuisance is repeated, the cause of action – and therefore the limitation period – accrues afresh each day.
Applying the standard to the present case
The claimants’ submission was that there was a continuing nuisance since the oil from the spill was still present on their land and had not been cleaned up. However, the Supreme Court disagreed with this position. As the Supreme Court explained, the oil leak in this case was a one-off event, which was stopped after six hours, and the cause of action accrued and was complete when the claimants’ land was affected by the oil, with no ongoing cause of action for as long as the oil remained on the land. As such, there was no repeated activity on the claimants’ land.
The Supreme Court distinguished this case from Darley Main Colliery Company v. Mitchell[1] and Delaware Mansions Limited v. Westminster City Council,[2] on which the claimants had relied heavily.
- In Darley, the defendant excavated coal from beneath the claimant’s land and failed to underpin it properly. This first caused subsidence to the claimant’s land in 1868. No further excavation work was carried out, but in 1882 a further subsidence occurred. In analysing this case, the Supreme Court in Jalla stated that: ‘Darley is most naturally described as a case of successive causes of action arising through the occurrence of separate events of damage, albeit brought about by the same conduct of the defendants’ (emphasis added). By contrast, the claimants in Jalla argued that there was a continuation of the same interference by reason of the one-off oil spill still being present on the claimants’ land.
- In Delaware Mansions, the defendant refused to remove a tree from a pavement adjoining the claimant’s land. The encroaching roots of the tree caused cracks in the claimant’s building. The defendant was held liable for causing continuing undue interference with the claimant’s land. The Supreme Court differentiated this case from Jalla on the grounds that, unlike the living tree and its encroaching roots, the oil leak was an isolated, one-off event.
Additionally, the Supreme Court reasoned that accepting the claimants’ submission would result in indefinitely extending the limitation period until the land is restored, effectively transforming the tort of private nuisance into a failure or omission to restore the claimants’ land. This, the Supreme Court continued, might also generate issues in assessing the damages, which must be assessed once and for all: ‘Where land is flooded on day 1, all the losses, past and prospective, for that accrued cause of action can be assessed on day 1 (including the cost of restoration). It is unclear how there can be a different assessment of damages, for a different cause of action, on day 2’.
Therefore, the Supreme Court found no continuing nuisance here and dismissed the appeal.
Takeaway
While the ongoing presence of pollutants years after a leak or spill undoubtedly represents a continuing nuisance in layperson’s terms, this case has unequivocally established that this is not the position under English law. In nuisance cases involving a one-off event, the limitation period is calculated from the moment damage is sustained. Accordingly, potential claimants must act promptly and ensure that they have identified the appropriate defendants (which is not always easy in complex corporate structures). Had the claimants done so in this case, there would have been no need to make the late amendments that were reliant on the continuing nuisance argument.
[1] Darley Main Colliery Company v. Mitchell [1886] 11 App Cas 127.
[2] Delaware Mansions Limited v. Westminster City Council [2002] 1 AC 321.
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