The Court of Appeal has delivered judgment in two linked appeals concerning claims brought by tens of thousands of residents of two communities in the Niger Delta against the parent company of the Shell Group, Shell Plc, and its Nigerian subsidiary, The Shell Petroleum Development Company of Nigeria Ltd.
The claimants, who are residents of the Ogale and Bille Communities in the Niger Delta, allege that there have been a vast number of oil spills from infrastructure operated by the defendants, which have caused extensive environmental damage. The claimants contend that, prior to disclosure and expert evidence, they are unable to presently identify the specific spills that caused the damage suffered by each individual claimant. The defendants argued (and the High Court accepted) that this meant that (i) the claims must be treated as “global claims”, i.e. “all or nothing claims” which will fail in their entirety if any material contribution to any of the damage was made by a cause for which the defendants were not responsible; and (ii) therefore this substantial group litigation cannot be progressed by way of the selection and trial of lead claims. The High Court reached this conclusion despite the claimants having repeatedly and expressly disavowed any reliance on a “global claim”.
The Court of Appeal unanimously allowed the claimants’ appeal against the “global claims” order. The Court of Appeal held that: “No judge or court is entitled to require a party to establish their case by a particular method. A party should be permitted to formulate their claims as they wish, not forced into a straitjacket (or corner or cul-de-sac of the judge’s or their opponent’s choosing.”
The Court of Appeal further held that, contrary to the conclusion reached by the Judge, the case is “a paradigm example of a case which can only be progressed by reference to lead cases”. The Court noted that there are “multiple examples of complex litigation with wide-ranging factual and legal issues in many disparate fields that have been successfully case-managed using lead cases as the vehicles for determining important issues… One of the advantages of the process of selecting lead cases is to concentrate the minds of the parties on the real issues in dispute and how to cover a wide spread of those issues using a proportionate number of lead cases as the vehicles for addressing them.”
The Court of Appeal also stressed that “in cases where there is a significant asymmetry of information between a claimant and a defendant, ‘the process of disclosure is one of the most powerful tools available for achieving justice’”. The Court therefore concluded that:
“The Court should be pursuing a procedural course that is designed to refine issues progressively to the point where their fair resolution will lead to the final disposal of the litigation as a whole or, at least, substantial parts of it. As things stand, that must involve three guiding principles. First, the Court should strive to ensure that the parties are on an equal footing in relation to access to relevant information. To that end, it appears on the information that is available to us that further disclosure is required. Second, lead cases should be selected by a collaborative process, with the Court being involved as necessary. Third, once the Claimants are in possession of a sufficiency of relevant information, they should be required to refine and set out the nature of their case or cases (by reference to the lead cases or otherwise) so that the Defendants have a fair understanding of the case they have to meet and a fair opportunity to meet it at trial.”
In addition to allowing the claimants’ appeal against the “global claims” order, the Court of Appeal also unanimously dismissed a separate appeal by the defendants against an order which granted the claimants permission to amend their statements of case to plead further details regarding the oil spills which they allege occurred in Bille and Ogale.
Edward Craven represented the claimants in the Court of Appeal, together with Anneliese Day KC (Fountain Court), Alistair Mackenzie (2TG) and George Molyneaux (Blackstone).
The Court of Appeal’s judgment is available here.