May 10, (THEWILL) – Britain’s highest court, on Wednesday, ruled that it was too late for people in Nigeria’s Niger Delta region to lodge pollution claims against energy giant Shell after a huge oil spill more than one decade ago.
The ruling followed an appeal filed by two Nigerian citizens (Mr Jalla and Mr Chujor) against Bonga oilfield, a company operating within the Shell group.
On 20 December 2011, at 3:00am, an oil leak lasting about six hours occurred during a cargo operation. The leak was caused by a rupture in one of the flowlines when crude oil was being transferred to a waiting oil tanker (the “Bonga Spill”).
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.
Although the defendants dispute these claims, maintaining that the spill was successfully contained and dispersed offshore and that it did not impact the shoreline.
Though the limitation period under Nigerian law – the agreed applicable law – is five years, the claimants – 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.
However, in a judgement of a five-member panel of Justices, led by Lord Burrows, the Supreme Court said, in a statement, that its five judges “unanimously” rejected an appeal over the 2011 spill, upholding prior rulings that claims were not made before a legal deadline.
The claimants had sought to overturn rulings from two lower courts, arguing that the oil spill constituted a “continuing nuisance”, a legal definition to which the deadline would not apply.
The Supreme Court, however, disagreed and declared the leak was a “one-off event or an isolated escape”, in a judgement which does not affect a separate legal action against Shell over other spillages.
“The claimants’ argument that there is a continuing nuisance, because on the assumed facts oil is still present on their land and has not been removed or cleaned up, is rejected.
“There was no continuing nuisance in this case because, outside the claimant’s 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,” said Judge Andrew Burrows.
The Supreme Court noted, however, that the 2011 spill was “one of the largest spills in Nigerian oil exploration history”.
The London-listed energy major welcomed the judgement on Wednesday, but said the spill was “regrettable”.
“It was clear from the start that these claims were unfounded and brought entirely out of time. Today’s decision rejected the claimants’ case that Bonga oil could have become trapped and re-mobilised years later, migrating upstream and impacting the claimants’ communities. While the 2011 Bonga spill was highly regrettable, it was swiftly contained and cleaned up offshore,” a Shell Spokesperson said.
The appeal, which was heard before Lord Reed, Lord Briggs, Lord Sales and Lord Burrows, was dismissed unanimously.
