The UK Supreme Court considered whether oil spill pollution constitutes a continuing nuisance (with fresh causes of action accruing until the oil is cleared up) in circumstances where the event causing the pollution occurs only once.
The action stemmed from the leakage of an estimated 40,000 barrels of crude oil on 20 December 2011 during the loading of an oil tanker at Shell's Bonga oil field, 120 km off the coast of the delta. A group of 27,800 individuals and 457 communities have since been trying to sue Shell, saying the resulting oil slick polluted their lands and waterways, damaging farming, fishing, drinking water, mangrove forests and religious shrines. A panel of five UK Supreme Court justices unanimously upheld rulings by two lower courts that found they had brought their case after the expiry of a six-year legal deadline for taking action.
This appeal concerns the tort of private nuisance (a civil wrong) in the context of a major oil spill. The claimants' lawyers had argued that the ongoing consequences of the pollution represented a "continuing nuisance", a type of civil tort, which would have meant the deadline did not apply. The question put before the Court therefore was, “Does pollution caused to land and waterways by an offshore oil spill constitute a continuing nuisance with fresh causes of action accruing until such time as the oil is cleared up, or it eventually disappears of its own accord, in circumstances where the event causing the pollution occurs only once?” This is an important question because it affects when the limitation period for the bringing of claims (which in English law for torts is normally six years) starts to run
The claimants and appellants, Mr Jalla and Mr Chujor, are two Nigerian citizens. The defendants and respondents are both companies within the Shell group of companies. The Bonga oil field is located approximately 120km off the coast of Nigeria. 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"). It is estimated that the equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The defendants are alleged to be liable for the operation behind the Bonga Spill.
They allege that the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline where they claim it has had a devastating impact and has not been removed or cleaned up. Although the defendants dispute these claims, maintaining that the spill was successfully contained and dispersed offshore and that it did not impact the shoreline, it is assumed for the purposes of this appeal that some quantity of oil reached the Nigerian Atlantic shoreline within weeks of 20 December 2011.
The issue of limitation arose when the claimants sought to make certain amendments to their claim form and particulars of claim over six years after the Bonga Spill. The claimants argue that so long as undue interference with their land is continuing, because oil on their land has not been removed or cleaned up, there is a continuing cause of action for the tort of private nuisance that is accruing afresh from day to day. The Supreme Court has unanimously rejected the appeal.
The Court said that, applying the relevant principles to the facts of this case, 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.
The effect of accepting the claimants' submission would be to extend the running of the limitation period indefinitely until the land is restored.
The Court has stated 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. 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.
The Supreme Court said that to accept the claimants' submission would undermine the law on limitation of actions, which is based on a number of important policies because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up.