Environmental litigation: Group claims must proceed as "global claims" unless individual claimants' losses tied to specific oil spills

The High Court has refused to strike out a group action brought against Shell Plc and its Nigerian subsidiary in connection with oil contamination in the Niger Delta. The court rejected the defendants' argument that the claims should be struck out due to a failure to identify the particular oil spills alleged to have caused each claimant's loss. However, unless the claimants can plead a more specific case, their claims will have to proceed as "global claims" rather than "events-based" claims as they intended: Alame v Shell Plc [2023] EWHC 2961.

The concept of a global claim originates from construction cases. It involves the claimant seeking a single sum as relief for loss or damage suffered due to a combination of breaches or events (as opposed to a specific breach or event) attributable to the defendant. Whilst not always the case, global claims are often brought where a series of events occur giving rise to losses, but where it is difficult or even impossible to identify and establish a causal link between a specific loss and a specific event.

In a construction context, global claims are regarded as difficult to make out and generally to be avoided. Historically, a global claim would usually fail if the defendant demonstrated that it was not responsible for an event which contributed significantly to the loss. However, following Walter Lilly v Mackay [2012] EWHC 1773 (TCC), the existence of such event will not necessarily be fatal to the overall claim if its impact can be assessed and separated out.

The present case is of interest in establishing that the global claim concept extends to claims for environmental contamination based on a series of polluting events, where it may be difficult or impossible to identify which individual event has caused each individual loss. Unless a claimant can plead its case on causation with sufficient particularity, the case is likely to be able to proceed only as a global claim. That remains the case even where the claimants are only required to show that the relevant events made a material contribution to the loss (as the claimants allege here under the applicable Nigerian law on causation): they must still identify which individual events they say made that contribution.

The judge in the present case said she would hear the parties' further submissions as to the case management implications of her ruling. It will be interesting to see how the court addresses matters such as disclosure and the selection of lead claimants in the context of a group action brought as a global claim.

Background

The claims arise out of oil spills from pipelines and associated infrastructure operated in two different areas in the Niger Delta, Nigeria. There are four sets of related actions – two brought by groups of local residents and two by community leaders (together, the Claimants).

The defendants are Shell plc and its Nigerian subsidiary (together, Shell).

The Claimants allege that Shell failed to prevent, mitigate or remediate oil contamination resulting from spills and thefts from Shell’s pipelines and associated infrastructure, which caused damage to the Claimants' land and communities.

Shell's defence is that major sources of oil pollution in the areas concerned came from theft and other illegal activity by third parties for which Shell is not responsible.

Following an unsuccessful jurisdiction challenge (see our blog post on the Supreme Court's decision here) the claims are being managed under a Group Litigation Order (GLO). The present decision arose out of a case management conference (CMC) dealing with a number of procedural issues, the most significant being Shell's proposal that the court regard the claims as "global claims".

At an earlier CMC in December 2021, O'Farrell J ruled that the case as pleaded was a global claim. The Claimants had identified a number of oil spillages, and described the damage suffered as a result of consequential contamination of the land and waterways, but they had not pleaded any direct causal link between each oil spill and the damage suffered by individual claimants. The terms of the subsequent GLO required the Claimants to identify the particular oil spills in relation to which each individual claimant sought compensation (or otherwise confirmation of the nature of the case they would rely on at trial).

Following that order, only five individual claimants identified the particular oil spill they say caused them loss.

Despite this, the Claimants asserted that each claimant was making an "events-based" claim, ie that each intended to assert and prove a link between their loss and a specific event or events for which Shell is responsible. The Claimants set out the practical difficulty in identifying the particular events at the pleadings stage and argued that the case would be developed for each of the lead claimants once disclosure had been provided and expert evidence obtained. They argued the court should focus on selecting lead claimants, which could be done by way of geographical area or occupation.

The Claimants also argued that (under Nigerian law) causation would be made out if one or more spills for which Shell was responsible made a material contribution to the damage suffered by a claimant.

Shell said that the Claimants had already had access to a large amount of information. If that information had not enabled them to plead events-based claims, it was doubtful this would ever be possible, and the claims should either be struck out or must proceed as global claims.

Shell also argued that allowing the claims to proceed as events-based claims, but without identifying the particular events alleged to cause each claimant's loss, would be unworkable from a case management point of view for a number of reasons, including the difficulties in selecting lead claimants for trial, organising the individual claims in any logical way, or developing issues for disclosure.

Decision

The High Court (May J) refused to strike out the claims, but ruled that the claims must proceed as global claims (other than the five individual claimants who had identified particular oil spills alleged to cause their losses).

If each individual was making an events-based claim, then the lack of particulars meant that "the essential element of causation is at best sketchy and at worst missing altogether". The judge was entirely satisfied that, as events-based claims, the Claimants' cases did not provide the information necessary to enable the court or the parties to "link the event(s) to breach and breach to loss, even by inference".

The Claimants' reliance on the "material contribution" concept of causation under Nigerian law did not get them over this difficulty, as each claimant would still need to show which specific spill made a material contribution to its loss.

The judge did not accept the Claimants' suggestion that selecting lead claimants by geography or occupation would reliably cover all the issues arising on an events-based claim. The legal route to liability and Shell's defence would depend on the types of events that occurred. For example, for pipeline incidents, there is a claim under statute. For third-party activities, liability would depend on negligent failure to protect. Accordingly, for an events-based claim, representative lead claimants could only be selected on the basis of type of event.

For an events-based claim, an individual claimant would have to answer two questions: (a) was the spill/event one for which Shell was liable; and (b) did that spill/event cause the claimant's loss? On the basis of the claims as pleaded, the Claimants would not be able to answer these questions. The difficulty in identifying a causal event did not remove the need to do so, unless all the events were said to be the responsibility of Shell, in which case the claims could continue as global claims.

The judge did not close the door on treating the claims as events-based claims in due course if they can be pleaded more specifically, but said that for now there was no practical alternative but to view the cases (other than the 5 individual claimants) as global claims "unless or until a more particular case is identified".

The judge said she would hear the parties as to the case management implications of her ruling that the claims should proceed as global claims, but noted the following passage from Walter Lilly:

"The fact that one or a series of events or factors…caused or contributed (or cannot be proved not to have caused or contributed) to the total or global loss does not necessarily mean that the claimant… can recover nothing. It depends on what the impact of those events or factors is."

Note: The Court of Appeal has overturned the High Court's decision. Read our blog post on the Court of Appeal decision here.