Supreme Court finds no continuing nuisance simply because polluting substance remains on claimants' land

A recent Supreme Court decision has confirmed the orthodox position in relation to how the law of limitation applies to claims in private nuisance, in particular as to when there will be a "continuing nuisance" such that the limitation period starts afresh from day to day. This has significant implications for environmental claims which are framed in private nuisance and based on a one-off escape of a polluting substance: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16.

The bottom line is that the court will not find there is a continuing nuisance simply because the relevant substance (such as, on the assumed facts in this case, the presence of oil from an oil spill) continues to be present on the claimants' land. There must be some repeated activity or ongoing state of affairs for which the defendant is responsible, which is outside the claimants' land, and which causes continuing interference with the use and enjoyment of that land.

Many environmental claims may involve a continuing nuisance of this sort, for example where the alleged nuisance is comprised of smoke, chemicals or odours from an industrial site that continues to operate. However, as the Supreme Court's decision shows, claims based on a single one-off event will not comprise a continuing nuisance, even if the impact of that event on the claimants' land has not been rectified.

It should also be noted that the questions of whether the tort of private nuisance can be committed by a single one-off event, and/or where the nuisance emanates from the sea, were assumed but not decided in the appeal.

Background 

The claims relate to a December 2011 oil spill off the coast of Nigeria at a platform owned/operated by the defendant group of companies. Proceedings were issued in December 2017, and the action was originally purported to be brought by two individual claimants as a representative action under CPR 19.6 on behalf of more than 27,500 individuals and 457 communities said to be affected by the spill. The representative element of that action has however been struck out (as outlined here), so that it now involves only the claims of the two individual claimants.

The claim was brought in the tort of private nuisance, which is committed where the defendant's activities unduly interfere with the use and enjoyment of the claimant's land. To address potential limitation difficulties, including in relation to subsequent amendments to the claim, the claimant submitted that there was a continuing nuisance, so that the cause of action - and therefore the applicable limitation period - accrued afresh from day to day for so long as the oil remained on the claimants' land.

The High Court and Court of Appeal both rejected that argument, and the claimants appealed to the Supreme Court. It was assumed for the purpose of the appeals that the tort of private nuisance may be committed where the nuisance emanates from the sea, and may be committed by a single one-off event such as the oil spill in this case.

Decision 

The Supreme Court unanimously dismissed the appeal, Lord Burrows giving a judgment with which Lords Reed, Briggs, Kitchin and Sales agreed.

Lord Burrows noted that, as a matter of ordinary language, the fact that the damage caused by a nuisance is still present may be described as a continuing nuisance in the sense of being a continuing problem, but he said that is "wholly misleading" when trying to clarify the meaning of a continuing nuisance in the legal sense.

A continuing nuisance in the legal sense, Lord Burrows explained, is one where, outside the claimant'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. A continuing nuisance is commonplace in the tort of private nuisance, such as where there is smoke, noise, vibrations and so forth from a neighbouring property which cause a continuing interference. That is why an injunction prohibiting the continuation of such activity is a common remedy for the tort of private nuisance.

Against this background, Lord Burrows rejected the claimants' submission that there was a continuing nuisance in this case because, on the assumed facts, the oil was still present and had not been removed or cleaned up. If that submission were correct, it would mean that the limitation period for a private nuisance would run indefinitely until the land was restored. It would in effect convert the tort of private nuisance into a tort in respect of the defendant's failure to restore the claimant’s land, and would undermine the law on limitation of actions.

There was no continuing nuisance here because, outside the claimants’ land, there was no repeated activity or 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 oil spill was a one-off event and the cause of action was complete once the claimants’ land had been affected by the oil.

The facts of this case were distinguishable from a tree root case, such as Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, where the living tree and its roots constituted an ongoing state of affairs which was outside of, but continued to affect, the claimant's land.

Lord Burrows noted that the defendants had also submitted that there could be no continuing nuisance in this case because the defendants had no control over the oil once it had reached the claimants' land. This submission was rejected, however. While a defendant will ordinarily have continuing control in a case of continuing nuisance, the case law shows that it is not a necessary requirement (eg Thompson v Gibson (1841) 7 M & W 456, where the defendant had erected a building, which was interfering with the claimant’s right to hold a market, and the defendant was liable for the continuing nuisance even though it could not remove the building as it did not own the land).