The UK Supreme Court has handed down a judgment about when the limitation period started running following a 2011 oil spill off the coast of Nigeria.
The court found that the limitation periods began when the oil reached the relevant land. It rejected the claimants’ argument that the limitation periods would continuously restart until the contaminant was cleaned-up. The consequence of this finding is that the Jalla claims are likely time-barred and will not continue to trial.
The Jalla proceedings
By the time this claim (the Jalla 1 claim) reached the Supreme Court, the claimants were two Nigerian citizens claiming in their individual capacities only (Mr Jalla and Mr Chujor). They had originally sought to claim as representatives of c.28,000 other individuals, but this was blocked by the High Court and Court of Appeal in 2020 to 2021 (see our previous article on the first instance decision).
In July 2020, a parallel claim (the Jalla 2 claim) was issued by the c.28,000 named individuals in their own rights and as representatives of their communities. The Jalla 2 claim was issued as a protective measure, in case (as transpired) the Jalla 1 representative action was unsuccessful.
Limitation periods
The Jalla 2 claim faced limitation challenges because it was issued in 2020, 9 years after the oil spill. The Jalla 1 claim faced similar challenges because the claimants had sought to amend their claims between 2018 and 2020; the defendants objected to these amendments because the limitation period had expired by then.
The Jalla 1 and Jalla 2 claims continued to be progressed in the High Court whilst the present appeal to the Supreme Court was pending. Earlier this year, the High Court decided that there was no plausible theory or evidence showing that oil from the spill reached any of the relevant communities later than 2012. It also concluded that the applicable limitation period under Nigerian law was 5 years from the date on which the cause of action accrued (see our previous blog post on the decision).
Accordingly, the claims were out-of-time unless it could be established that the causes of action accrued after the oil reached the claimants’ land. This was the question which the Supreme Court resolved in the defendants’ favour.
Continuing nuisances
The claimants argued that the presence of oil on their land gave rise to continuing causes of action until it was cleaned up by the defendants. Those causes of action were said to arise in the tort of private nuisance.
The core principles of private nuisance were recently restated by the Supreme Court in the well-publicised case about the London Tate Modern’s viewing gallery. The court in Jalla made reference to these principles – in summary:
- The tort of private nuisance protects claimants against wrongful interference with their rights over land.
- That interference can be caused by physical invasion or something intangible such as fumes, noise, vibration, unpleasant smells, or intrusive overlooking (as in the Tate Modern case, where the claimants were owners of neighbouring flats).
- The interference with the claimant’s land must be substantial and the defendant’s activity must go beyond ordinary use of their own land. The character of the locality is a relevant consideration here.
- It is not a defence to say that the nuisance has only arisen because the claimant has acquired or changed the use of the land. Public benefit is also not a defence.
The claimants relied on cases which established that a cause of action in private nuisance can continue to arise if the defendant’s unlawful activity or state of affairs continues day-after-day (or on another regular basis). For example, continuing nuisances have been found where a defendant’s eaves continued to overhang a claimant’s land, or a defendant’s tree’s roots continued to dehydrate and impair the load-bearing qualities of a claimant’s land.
If the Jalla claimants had been right that the continued presence of oil on their land constituted a continuing nuisance, their limitation periods would have continued to re-start as their causes of action continued to re-arise.
However, the Supreme Court (upholding the lower courts’ decisions) held that the oil spill was a single event and not a continuing tort:
- The spill was a was a one-off event which lasted less than 6 hours; it was not a repeated activity that could be regarded as continuing.
- Crucially, the Supreme Court held that the claimants’ submission would have meant that the limitation periods would run indefinitely until the land was restored, which would undermine the law of limitation of actions.
- The submission would also have changed the nature of the private nuisance cause of action from being about interferences with a claimant’s land (by spilling oil which contaminated it), to being about a failure to restore a claimant’s land.
Why is the decision important?
Although a typical nuisance case (such as the Tate Modern case) relates to two neighbouring plots of land, the Jalla case concerned a nuisance emanating from the sea which was up to 60km away from the claimant communities. The Supreme Court heard submissions on, but did not decide, whether it was legally possible for a nuisance to emanate from the sea. That question remains open.
Likewise, the court refused to rule on whether a single one-off event, such as an oil spill, could constitute a cause of action in private nuisance. If it can, then the tort may well be engaged in many environmental damage cases which involve the contamination of claimants’ land in England and Wales or other common law jurisdictions which recognise a parallel tort.
There would have been a major impact on any environmental damage claims proceeding in private nuisance if the Supreme Court had accepted the claimants’ submissions. As the court observed, the effect would have been to impose an unlimited obligation on defendants to remove contaminants from claimants’ land. The effective removal of any limitation period for such claims would also have made it very difficult for prospective defendants to manage their own environmental litigation risk profiles.
Subject to any appeal of the High Court’s factual findings on limitation, it now appears that the Jalla claim will not proceed in the English courts. The challenges which the claim has faced show the substantial technical and procedural difficulties which these kinds of mass claims often have to grapple with.
For further information, please contact:
Susana Cao Miranda, Partner, Linklaters
susana.caomiranda@linklaters.com
