Jalla & Anor v Shell International Trading and Shipping Co Ltd & Anor [2023] UKSC 16 (10 May 2023)

Lord Burrows (with whom Lord Reed, Lord Briggs, Lord Kitchin and Lord Sales agree):

1. Introduction

This appeal concerns the tort of private nuisance in the context of a major oil spill which occurred off the coast of Nigeria in December 2011. The question at issue is whether there is a continuing private nuisance and hence a continuing cause of action. This matters because the date of accrual of the cause of action is the date from which the limitation period starts to run. Under English law (as laid down by section 2 of the Limitation Act 1980) the limitation period is six years although the limitation period may be five years under Nigerian law which, it is common ground, is the applicable law. The claimants submit that there is a continuing cause of action because there is a continuing nuisance so that the limitation period runs afresh from day to day.

In general terms, the tort of private nuisance is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land: see, eg, Lawrence v Fen Tigers Ltd (“Lawrence”) [2014] UKSC 13, [2014] AC 822, para 3 (per Lord Neuberger); Fearn v Board of Trustees of the Tate Gallery (“Fearn”) [2023] UKSC 4, [2023] 2 WLR 339, paras 18 - 20 (per Lord Leggatt); Christian Witting, Street on Torts (16^th edn, 2021) p 424; Clerk & Lindsell on Torts (23^rd edn, 2020) para 19-01; John Murphy, The Law of Nuisance (2010) para 1.05; Donal Nolan, “‘A Tort Against Land’: Private Nuisance as a Property Tort” in Rights and Private Law (eds Donal Nolan and Andrew Robertson, 2012) pp 459, 463 - 465. Nearly always the undue interference with the use and enjoyment of the claimant’s land will be caused by an activity or state of affairs on the defendant’s land so that the tort is often described as one dealing with the respective rights of neighbouring landowners or occupiers: see, eg, Sedleigh-Denfield v O’Callaghan (“Sedleigh-Denfield”) [1940] AC 880, 903 (per Lord Wright). But the creator of the nuisance can be sued whether or not that person still has (or perhaps ever had) any interest in the land from which the nuisance emanates (see para 44 below). Moreover, it is being assumed for the purposes of this appeal that the tort of private nuisance may be committed where the nuisance emanates from the sea. It is also being assumed that the tort of private nuisance may be committed by a single one-off event such as the oil spill in this case. I shall say more about those two assumptions at the end of this judgment (see paras 47 - 49 below).

As with the tort of negligence, and in contrast to the tort of trespass to land, the tort of private nuisance is actionable only on proof of damage and is not actionable per se (see Clerk & Lindsell on Torts para 19-02). This requirement is satisfied for private nuisance by establishing the undue interference with the use and enjoyment of the land. That includes physical damage to the land itself and damage to buildings or vegetation growing on the land. But commonly there will be an undue interference with the use and enjoyment of land - as by the impact of noise or smell or smoke or vibrations or, as in Fearn, being overlooked – even though there is no physical damage to the land or buildings or vegetation.

It is submitted by the claimants that, in this case, there is a continuing nuisance, and hence a continuing cause of action, for as long as the undue interference with the claimants’ land is continuing. They argue that, on the assumption that the oil from the oil spill is still present on the land of the claimants and 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.

That argument of the claimants, which is being dealt with as a discrete preliminary matter prior to trial, was rejected by Stuart-Smith J: [2020] EWHC 459 (TCC) paras 62 - 68. The appeal against that decision was dismissed by the Court of Appeal (Lewison, Newey and Coulson LJJ) with the leading judgment being given by Coulson LJ: [2021] EWCA Civ 63. The claimants now appeal to the Supreme Court.

2. The factual background and the claim

The claim has been brought in respect of alleged oil pollution of land, including waterways, caused by an oil spill which occurred off the coast of Nigeria on 20 December 2011 (“the Bonga Spill”). The leak which gave rise to the Bonga Spill occurred during a cargo operation at an offshore installation in the Bonga oil field. The Bonga oil field is located approximately 120 km off the coast of Nigeria. The infrastructure and facilities at the Bonga oil field include a Floating Production Storage and Offloading unit (“FPSO”), which is linked to a Single Point Mooring buoy (“SPM”) by three submersible flexible flowlines. The oil is extracted from the seabed via the FPSO, through the flowlines to the SPM, and then on to tankers. The Bonga Spill resulted from a rupture in one of the flexible flowlines connecting the FPSO and the SPM. The leak occurred overnight during a cargo operation when crude oil was being transferred from the Bonga FPSO through the SPM and onwards onto a waiting oil tanker, MV Northia. The cargo operation commenced on 19 December 2011, and the leak began at an unknown time prior to 3:00am on the morning of 20 December 2011. The cargo operation and the leaking were stopped after about six hours.

As a result of the Bonga Spill, it is estimated that the equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The claimants allege that, following its initial escape, the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline where they claim it has had a devastating impact on two affected States in the Niger Delta - Delta and Bayelsa States. The claimants allege that the oil has not been removed or cleaned up. In contrast, the defendants maintain that the Bonga Spill was successfully contained and dispersed offshore such that it did not impact the shoreline. Nevertheless, they accept that, for the purposes of determining the limitation issue in this appeal, it should be assumed that some quantity of oil from the Bonga Spill reached the Nigerian Atlantic shoreline. The parties have further agreed that, for the purposes of determining the legal issue in this appeal (and in line with Stuart-Smith J’s finding, on the basis of the information before him, at para 59 of his judgment), it is to be assumed that oil reached the Nigerian Atlantic shoreline within weeks rather than months of 20 December 2011.

The claimants, Mr Jalla and Mr Chujor, are two Nigerian citizens. They bring a claim in the tort of private nuisance for undue interference with the use and enjoyment of land owned by them which they say has been impacted by the Bonga Spill. Although there has been a dispute as to whether they were also validly bringing these proceedings as a representative action on behalf of 27,830 other individuals, it is accepted that, for the purposes of this appeal, the only claimants are Mr Jalla and Mr Chujor and that this is not a representative action.

The defendants are Shell International Trading and Shipping Co Ltd (“STASCO”) and Shell Nigeria Exploration and Production Co Ltd (“SNEPCO”). Both are companies within the Shell group of companies. The former is an English company domiciled in London. It is alleged that STASCO is directly or vicariously liable for the operation of the MV Northia. It has been sued in England, as an English domiciled company, pursuant to article 4 of the Recast Brussels I Regulation (Regulation (EU) No 1215/2012). SNEPCO is a Nigerian company which owned and operated the FPSO, the SPM and the ruptured flowline that connected the two. SNEPCO is alleged to be liable as the operator of the FPSO at the relevant time. It was served out of the jurisdiction on the basis that it was a necessary or proper party to the claim against STASCO.

The claimants issued their claim form on 13 December 2017. This was just under six years after the spill occurred on 20 December 2011. In April 2018, over six years after the spill, the claimants purported to amend their claim form including changing one of the parties being sued from Shell International Ltd (a company which they had initially sued) to STASCO. In April, June and October 2019, they issued a series of applications to amend their claim form and particulars of claim. The defendants submitted that, as the amendments were being sought after the expiry of the limitation period, the claimants had to satisfy the requirements of CPR rr 17.4 and/or 19.5 (now 19.6) and that they could not do so.

It was in this context, of determining whether the amendments were being sought outside the limitation period, that the question of a continuing nuisance, with which this appeal is concerned, arose. The claimants submitted that, because there was a continuing nuisance, their applications to amend the claim form and particulars of claim were within the limitation period.

It is important to stress that this appeal is concerned only with the question whether on the facts (including those assumed by the parties for the purposes of this appeal) there was a continuing nuisance so that the applications to amend the claim form and particulars of claim fell within the limitation period (and note also that claims for damages at common law are restricted to causes of action accruing within the limitation period: see para 32 below). We are not concerned with a separate argument that the oil spill may have reached land of the claimants at later dates than within weeks rather than months of 20 December 2011. That separate argument has become known as the “date of damage” issue and was the subject matter of the recent decision of O’Farrell J on 28 February 2023: [2023] EWHC 424 (TCC). The parties have agreed that the issues of fact and law determined by O’Farrell J in relation to the “date of damage” issue are irrelevant to the continuing nuisance issue of law that arises for determination on this appeal.

3. The decisions and reasoning of the courts below on the continuing nuisance issue

(1) Stuart-Smith J

Along with determining a number of other issues, with which we are not here concerned, Stuart-Smith J at paras 62 - 68 reasoned as follows on the continuing nuisance issue:

(i) It is clear that a nuisance can be a continuing one such that every fresh continuance may give rise to a fresh cause of action in the tort of private nuisance. Stuart-Smith J suggested that a classic example of a continuing nuisance is provided by Battishill v Reed (1856) 18 CB 696 where, inter alia, the defendant constructed on his own land a building higher than the claimant’s with its eaves overhanging the claimant’s property so that rain water ran from those eaves onto the claimant’s land causing damage.

(ii) As Lord Atkin pointed out in Sedleigh-Denfield at p 896 (where a flood on the claimant’s land had been caused by the act of a trespasser on the defendant’s land), there is a risk of imprecise language in referring to a state of affairs that has the potential to cause damage as itself being a nuisance. It is clear that there is no cause of action in private nuisance unless and until damage has been caused.

(iii) Although the claimants relied on Delaware Mansions Ltd v Westminster City Council (“Delaware Mansions”) [2001] UKHL 55, [2002] 1 AC 321 as authority for the proposition that failure to remediate the consequences of a single event can be a continuing nuisance, that case was distinguishable and did not assist the claimants. Roots from a tree on an adjoining pavement had caused cracks in the claimant’s building. The claimant was held entitled to recover from the defendant highway authority the cost of carrying out the necessary underpinning works. Stuart-Smith J considered that that was a case of a continuing nuisance where the continuing presence of the tree roots gave rise to a continuing need for underpinning that would have been avoided if the defendant had removed the tree. That was very different from what he described as the “normal” case of private nuisance where there is a single escape for which all damages must be claimed at once even if the consequences of the nuisance persist. The present case was a single escape case and there was no continuing nuisance. He said that if, in Sedleigh-Denfield, there had been an escape of water, which had formed a lake which caused damage to the claimant’s land over a period of weeks, that would have been one occurrence of a legal nuisance, for which all damages should have been claimed at once, despite the extent and duration of the consequential damage. He concluded that to treat the escape of the oil as a continuing nuisance, in the sense contended for by the claimants, would be “a major and unwarranted extension of principle” (para 67). The limitation period should therefore not be extended by reference to the concept of a continuing nuisance.

It is helpful to set out the terms of the order made by Stuart-Smith J on this issue:

“For the reasons set out in paragraphs 62-68 of the Judgment, it is declared that the nuisance as alleged by the Claimants in their original Particulars of Claim and/or their draft Amended Particulars of Claim and on the evidence before the Court at the hearings in September and October 2019 could not constitute a continuing nuisance and that accordingly the limitation period should not be extended by reference to the concept of a continuing nuisance.”

(2) The Court of Appeal

The decision of Stuart-Smith J was upheld by the Court of Appeal on the continuing nuisance issue (which was the sole issue on the appeal). Before coming to his essential reasoning, Coulson LJ considered five leading cases on the tort of private nuisance: Sedleigh-Denfield and Delaware Mansions (both of which I shall examine in detail later in this judgment); Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 (pollution of water supply was not actionable in nuisance or under the rule in Rylands v Fletcher (1868) LR 3 HL 330 because the type of harm was not reasonably foreseeable); Hunter v Canary Wharf Ltd [1997] AC 655 (interference with television reception was not an actionable nuisance and, in any event, those without an interest in the land could not sue); and Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514, [2019] QB 601 (Japanese knotweed, that had spread from the adjoining neighbour’s land, was an actionable nuisance).

Turning to Coulson LJ’s essential reasoning, this can be summarised in the following way:

(i) A continuing cause of action in tort will usually involve a repetition of the acts or omissions which give rise to the original cause of action. The “paradigm example” (para 54) of a continuing cause of action in the tort of private nuisance is a tree-roots case such as Delaware Mansions. On the assumption that a one-off event or an isolated escape can comprise an actionable private nuisance, there is no authority for the proposition that a one-off event or an isolated escape can give rise to a continuing nuisance. Here the event occurred on 20 December 2011 and the leak had been stopped within six hours. It was a single, one-off event, giving rise to a single, and not a continuing, cause of action. The oil that remained on the claimants’ land was the consequence of that single event.

(ii) Delaware Mansions was distinguishable from the present case because the tree and its roots were still there. Unlike the present case, there was therefore a relevant continuing event or state of affairs.

(iii) It was incorrect in principle to equate the continuing harm or damage, constituted by the continuing presence of the oil on the claimants’ land, with there being a continuing nuisance. Moreover, to do so would have serious ramifications for the law on limitation of actions. It would mean that, from a one-off oil leak, companies like STASCO and SNEPCO could be faced with litigation many decades later.

(iv) To treat the oil on the claimants’ land as being a continuing nuisance until removed or cleaned up implied that there was a continuing obligation on the defendants to remediate the damage. Yet the defendants had no control over the oil once it had reached the claimants’ land and had no right of access to that land.

(v) The particular properties of oil - which may make it almost impossible to disperse without a proper clean-up operation - do not mean that different principles of law should be applied to it. In any event, oil is in this respect no different to, for example, the toxic solvents that escaped in the Cambridge Water case.

(vi) The losses for which damages were being claimed (for example, for the effect of the oil on the fishing and farming industries) were consistent with the damage, necessary for the accrual of the cause of action, being caused by a one-off event at the start. In Coulson LJ’s words at para 84:

“[T]he heads of loss suggest a devastating single event, which had a terminal effect on fishing, fish trading, farmland, drinking water, mangrove swamps and other features of the land. The suggestion in the pleading is that all the damage which could have occurred has occurred, and that compensation is sought for that damage. That is inconsistent with damage which is or could be continuing.”

(vii) Coulson LJ therefore concluded that this was not in law a case of continuing nuisance and that the judge had been correct to decide that the claimants’ cause of action accrued when the oil struck their land.

4. Four cases in the House of Lords or Supreme Court

It appears that there is no prior case in English law that has decisively rejected or accepted the argument on continuing nuisance put forward by the claimants in this case. But in the search for the correct legal principles, three cases of the highest court were particularly focussed on in the claimants’ submissions: Darley Main Colliery Co v Mitchell (“Darley”) (1886) 11 App Cas 127, Sedleigh-Denfield, and Delaware Mansions.

Before turning to those three cases, it is helpful to refer to the very recent exposition of the core principles of the tort of private nuisance by this court in Fearn. It was there decided that the defendants were committing the tort of private nuisance by using the top floor of their building as a public viewing gallery which looked straight across into the living areas of the claimants’ flats. Lord Leggatt, giving the leading judgment with which Lord Reed and Lord Lloyd-Jones agreed (Lord Sales and Lord Kitchin dissenting), set out the core principles of the tort of private nuisance as follows:

(i) The tort of private nuisance is a tort to land (ie it is a property tort). It is concerned with the wrongful interference with the claimant’s enjoyment of rights over land (and the concept of land includes buildings and rights, such as easements, which attach in law to the land). Only a person with a legal interest in the land can sue and the law is concerned to protect the claimant against a diminution in the utility and amenity value of the land.

(ii) Nuisance can be caused by any means and does not require a physical invasion. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance. The interference may be by something tangible (the example given being Japanese knotweed) or something intangible such as fumes, noise, vibration or an unpleasant smell. It can include intrusive overlooking.

(iii) The interference must be substantial and must be an interference with the ordinary use of the claimant’s land. The use of the defendant’s land must also go beyond what is ordinary use. At a general level, what is involved is the balancing of the conflicting rights of landowners. This has sometimes been expressed by saying that the interference with the use and enjoyment of land must be “unlawful” or “undue” or, although Lord Leggatt advised caution in using this term, “unreasonable”.

(iv) In deciding whether there is a private nuisance one must have regard to the character of the locality.

(v) Coming to a nuisance is no defence. That is, at least as a general rule, it is not a defence that what was previously not a nuisance has subsequently become one because the claimant has acquired or started to occupy the land affected or has changed its use.

(vi) It is not a defence to a claim for private nuisance that the activity carried on by the defendant is of public benefit although this may be relevant in determining the appropriate remedy.

I now turn to the three cases in the highest court that were particularly focussed on by Jonathan Seitler KC, counsel for the claimants. Taking them chronologically, the first is Darley. There the defendants had the right to extract coal from under the claimant’s land. In doing so, they had caused subsidence to the claimant’s land in 1868, thereby committing the relevant tort (which, although not made clear in the speeches, was most obviously the tort of private nuisance) for which they had compensated the claimant. They carried out no further excavation work but in 1882 a further subsidence occurred causing different damage to the claimant’s land. That further subsidence in 1882 would not have occurred if an adjoining owner had not carried out excavation work for coal on and under his land or if the defendants had left enough support under the claimant’s land.

The majority of the House of Lords (Lord Blackburn dissenting) decided that the second subsidence constituted a new cause of action separate from the first. The facts therefore fell outside, and did not infringe, the general rule (see, eg, Fitter v Veal (1701) 12 Mod 542) that damages for a cause of action must be recovered once and for all; and the limitation period had, therefore, not expired. All their Lordships made clear that the tort in question was actionable only on proof of damage. Lord Fitzgerald at p 151 (but, it would appear, not the other two Lords in the majority, Lord Halsbury and Lord Bramwell) placed weight on there being a continuing omission by the defendants in not taking steps to provide adequate support and therefore in permitting the state of affairs to continue. Lord Blackburn dissented because, in his view, after 1868 there had been no further breach of duty by the defendants comprising a continued withdrawal of support and the new damage did not constitute a new cause of action separate from that for which damages had already been given.

In Sedleigh-Denfield, Middlesex County Council had trespassed onto the defendants’ land and placed a pipe in a ditch to carry away rain water. But the grating over the end of the pipe had been placed on top of the pipe instead of at the entrance to the pipe so that it could not be effective in stopping the pipe becoming blocked with leaves and other debris. The defendants knew or reasonably should have known of the unguarded pipe. Three years later, after a heavy storm, the pipe became blocked, the ditch overflowed, and the claimant’s land was flooded thereby causing substantial damage. The House of Lords held that the defendants were liable to the claimant in the tort of private nuisance. Although the defendants had not created the nuisance (which had been created by the trespasser), they had “continued” the nuisance (and in the opinion of Viscount Maugham they had also “adopted” it by making use of the pipe). The defendants continued the nuisance because, despite actual or presumed knowledge of the unguarded pipe, they did not take reasonable steps to remedy the position.

As referred to by Stuart-Smith J (see para 13(ii) above), Lord Atkin pointed to the inaccuracy of talking about there being a nuisance on the defendants’ land given that the tort of private nuisance is not committed unless and until damage to the claimant’s land is caused. Lord Atkin said at p 896:

“It is probably strictly correct to say that as long as the offending condition is confined to the defendant’s own land without causing damage it is not a nuisance, though it may threaten to become a nuisance. But where damage has accrued the nuisance has been caused.”

Finally, in Delaware Mansions, the roots of a plane tree on the pavement adjoining a block of flats had caused cracks, which appeared in 1989, in the structure of the flats. The land on which the block of flats was built was then owned by the Church Commissioners but in 1990 they transferred the freehold to Flecksun Ltd for £1. The defendant highway authority (Westminster City Council) refused to remove the tree. The claimant, Flecksun, carried out the necessary underpinning works to protect its property at a cost of £570,734.98 and claimed that cost from the defendant highway authority as damages for the tort of private nuisance. It was held by the House of Lords that they were entitled to the damages claimed. There was a continuing nuisance, of which the defendant knew or ought to have known, and reasonable remedial expenditure was recoverable by the owner who had to incur it. Lord Cooke, giving the leading speech with which the other Lords agreed, said the following at para 33:

“there was a continuing nuisance during Flecksun’s ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance…. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000. On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred …”

5. What is a continuing nuisance?

Part of the difficulty in articulating what is meant by a continuing nuisance for the purposes of the tort of private nuisance is that, as a matter of ordinary language, one can naturally describe the effect of the interference or damage still being present, and not having been cleaned up or otherwise dealt with, as being a continuing nuisance in the sense of being a continuing problem. In this case, therefore, one can naturally describe the oil still being on the claimants’ land as a continuing nuisance. But that is wholly misleading when one is trying to clarify the meaning of a continuing nuisance in the legal sense.

While I agree with the essential reasoning of the lower courts, with respect, they may have slightly overcomplicated matters by failing to make clear that, far from being unusual, a continuing nuisance in the legal sense is commonplace in respect of the tort of private nuisance.

In principle, and in general terms, 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. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and, as in Fearn, overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.

This explanation is consistent with Hole v Chard Union [1894] 1 Ch 293 which was a nuisance case in which the general concept of a continuing cause of action was considered albeit in the context of procedural rules that no longer apply. There the defendants had repeatedly discharged sewage and refuse into a stream that ran through the claimant’s land and past his house. The claimant had been granted an injunction to stop the nuisance but it had continued. The claimant had died and the question was whether his successors were entitled to damages for loss suffered subsequent to the injunction coming into force. Applying the then relevant Rules of the Supreme Court (Order 36, rule 58) that turned on whether, prior to the date of assessment, there was a continuing cause of action. The Court of Appeal held that there was a continuing cause of action in nuisance. Lindley LJ said at pp 295-296:

“what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”

And AL Smith LJ said at p 296:

“If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem.”

Davey LJ agreed with both judgments.