High Court finds claims arising out of oil spill cannot proceed as representative action under CPR 19.6

In a recent decision, the High Court has struck out the representative element of a claim purportedly brought on behalf of large numbers of Nigerian individuals and communities seeking remediation for damage allegedly caused to their land and water supplies by a 2011 oil spill. The court found that the claim could not be brought using the representative action procedure under CPR 19.6 as the claimants failed to satisfy the "same interest" requirement under that rule: Jalla v Shell International Trading and Shipping Company Ltd [2020] EWHC 2211 (TCC).

The decision re-emphasises the strict test that must be met for claims to be brought as a representative action under CPR 19.6 - which is essentially an "opt-out" class action procedure as it does not require individual claimants to be joined as parties to the action or even identified individually. To bring a representative action, it is not enough that the claims raise some common issues of fact or law. While it is often desirable for similar claims to be litigated together, there are other procedural tools available to achieve that, most obviously the group litigation order (or GLO) procedure.

The proper scope of the CPR 19.6 representative action is due to be considered by the Supreme Court, following permission to appeal having been granted in the case of Lloyd v Google LLC [2019] EWCA Civ 1599 (considered here). That case concerns a claim for compensation for the loss of control of personal data, in circumstances where the claimants have disavowed any claims which rely on their individual circumstances. While the claimants in the present case sought to draw parallels with Lloyd v Google by abandoning their individual damages claims, and instead focusing on their claims for remediation, the court found that the claimants would still have to show causation and loss on an individual basis in order to establish the remediation claims.

The court recognised that the existence of some individual elements, over and above the claim in which the parties have the "same interest", will not necessarily prevent an action proceeding on a representative basis. However, those individual elements must be "subsidiary" to the main issue in the proceedings, and on the facts that was not the case: the issues of causation and damage were an integral part of the issues raised by the proceedings.

Background

These proceedings were brought by the two lead claimants on their own behalf and on behalf of more than 27,500 individuals and 457 communities in Nigeria that were alleged to have been affected by an oil spill off the Nigerian coast in December 2011. The lead claimants purported to bring the claims under CPR 19.6, which allows a claim to be brought by (or against) one or more persons as representatives of any others who have the “same interest” in the claim.

The claimants allege that the defendants are responsible for the 2011 oil spill, which is said to have caused serious and extensive damage to the claimants' land and water supplies and the fishing waters in and around the claimants' villages. The claimants initially claimed damages as well as an order requiring the defendants to take measures to remediate the negative environmental impact from the oil spills, or alternatively to pay the value of the remediation works so that the claimants can put the work in hand.

The defendants do not accept that any oil from the spill reached the claimants' coastline or caused the damage alleged. They applied to strike out the proceedings on various grounds, including that the proceedings are not properly constituted as a representative action because the lead claimants and those they purport to represent do not all have "the same interest" under CPR 19.6.

Pending the hearing of the strike-out application, the claimants issued fresh proceedings (referred to in the judgment as the "Protective Proceedings") which largely mirror the claims in the present action but are brought in the names of each of the individuals and communities included in the present action (plus some additional claimants). The claimants then applied to consolidate the two actions and said that they were abandoning their "individualised" claims for damages in the present action, leaving those to be pursued in the Protective Proceedings, so that the present action was principally for remediation relief.

Decision

The High Court (Stuart-Smith J) held that the proceedings cannot continue as a representative action because the represented claimants do not satisfy the "same interest" requirement. He therefore struck out the representative elements of the proceedings, leaving the personal claims of the two lead claimants to continue (as well as the Protective Proceedings).

The judge noted that the parties disagreed about the scope and meaning of the "same interest" requirement, with the claimants pressing for what he called a more relaxed and generous interpretation and the defendants arguing for a strict interpretation.

Having reviewed the relevant authorities in some detail, including Emerald Supplies v British Airways Plc [2010] EWCA Civ 1284 (considered here) and Lloyd v Google (referred to above), the judge summarised the relevant principles as including the following:

• The "same interest" requirement in CPR r. 19(6)(1) is statutory and is not to be abrogated or substituted by reference to the overriding objective. It is, however, to be interpreted having regard to the overriding objective and should not be used as an unnecessary technical tripwire.
• The "same interest" which the represented parties must have is a common interest, which is based upon a common grievance, in obtaining relief that is beneficial to all represented parties. It is not sufficient that multiple claimants wish to bring claims which have some common question of fact or law.
• It is not necessary that the claims or causes of action of all represented parties should be congruent, provided that they are in effect the same for all practical purposes.
• The existence of individual claims over and above the claim for relief in which the represented parties have the same interest does not necessarily render representative proceedings inapplicable or inappropriate. The question is whether the additional claims can be regarded as "a subsidiary matter" or whether they affect the overall character of the litigation.
• Similarly, while the court will pay little attention to potential individual defences that are merely theoretical, the existence of potential defences affecting some represented parties' claims but not those of others tends to militate against representative proceedings being appropriate.
• If the criterion of "the same interest" is satisfied the court's discretion to permit representative proceedings to continue should be exercised in accordance with the overriding objective.

The judge noted that it was common ground in the present case that it must be possible to identify the members of the represented class at all stages of the proceedings, not just at the end, and that the represented class must be defined with a sufficient degree of certainty - though it was not necessary that its membership should remain constant throughout the proceedings.

Applying the principles to the present action, the judge said there could be no doubt that the claims raise some common issues of law and fact, including the fact of the oil spill, how and why it occurred, and whether its occurrence was caused by a breach by the defendants of any duty owed to the claimants. But even assuming that these issues were resolved in the claimants' favour, that would not give rise to a right to relief. Each individual claimant or community would have to go further and prove that the oil spill caused them damage.

That was not changed by the claimants abandoning their individualised claims for damages, as they would still have to show that they had suffered damage to an extent that justified their claim for remediation relief. Putting aside the question of whether the English court could order remediation of land situated in Nigeria, the court could not make such an order (or an order to pay the costs of remediation works) without investigating what damage was suffered and where, and whether it was attributable to the 2011 oil spill. It was, the judge said, a misuse of language to characterise the remediation relief that an individual or community claimant sought as being relief that was beneficial for all those represented.

The judge noted that, in principle, the existence of individualised claims would not necessarily prevent an order for representative proceedings - the question is whether the individualised claims can be regarded as "subsidiary" to the main issue in the proceedings. But on the facts here, that was not possible: the issues of loss, damage and causation were not "subsidiary" but were an integral part of the issues raised by the proceedings.

The judge accepted that it was obviously desirable that, if these issues were to be litigated in England, they should be litigated once and in the context of a structure that accommodates all potential claimants. However, that could be achieved by other means including the making of a GLO or common case management of the various actions.