Case management and disclosure implications of environmental group action being brought as "global claim"

The High Court has determined questions of case management and disclosure following on from its previous ruling (considered here) that group claims against Shell Plc and its Nigerian subsidiary relating to oil contamination in the Niger Delta must proceed as "global claims", in light of the claimants' failure to identify the particular spills said to have caused each claimant's loss: Alame v Shell Plc [2024] EWHC 510 (KB).

The judgment is of interest for the decision that, so long as the case is to proceed as a global claim, there cannot be a trial of lead claims as would be typical in this sort of group litigation. Instead, following a trial of preliminary issues relating to principles of Nigerian law and statutory construction, as well as the law and principles applicable to the concept of a “global claim”, there will be a factual trial to examine the causes of all oil contamination in the relevant region over the period in question.

In relation to disclosure, the court emphasised that an imbalance of information between the parties did not mean the claimants had a right to broad disclosure, regardless of relevance. Disclosure must be tethered to pleaded issues, and would not be ordered solely on the basis that it might assist the claimants to identify events that had caused individual losses: that would be a classic fishing expedition.

However, despite this general approach to limiting disclosure, the court also rejected the defendants' position that, in relation to reports and other documents they had agreed to provide relating to oil spills, disclosure should be limited to known incident numbers. That was too narrow, in circumstances where the factual trial would need to focus on all oil polluting events in the region in the relevant period, and where there was evidence that the defendants' monitoring of polluting events was unreliable. Disclosure should therefore extend to material which might point to other incidents.

Background

As explained in our previous blog post, linked above, the claims relate to oil spills in two different areas in the Niger Delta, the Bille and Ogale regions. The claimants allege that the defendants failed to prevent, mitigate or remediate oil contamination resulting from spills and thefts from their pipelines and associated infrastructure, which caused damage to the claimants’ land and communities. The defendants contend that the contamination was caused in large part by theft and other illegal activity by third parties for which they are not responsible.

In a decision in November 2023, the High Court held that the claims must proceed as "global claims" rather than "events-based" claims, unless the claimants could plead a more specific case as to which oil spills are alleged to cause each claimant's loss. At a further hearing in March, the court considered the implications of that decision for case management and disclosure going forward.

It was common ground that the Bille claims should be addressed before the Ogale claims and that the first hearing, to be listed over three weeks in January-February 2025, should be a preliminary issues trial to determine principles of Nigerian law and statutory construction affecting the Bille claims. The parties agreed a list of 22 issues to be determined at that trial, but disagreed about the inclusion of two further issues, relating to the concept of a global claim.

The parties also disagreed about the scope of the factual trial, to take place once the preliminary issues trial had concluded, and the extent of the disclosure that should be given now in preparation for the factual trial.

Decision

The High Court (Mrs Justice May) made various directions to manage the claims going forward.

Preliminary issues trial

With regard to the preliminary issues trial, the judge held that this should include the two issues relating to the concept of a global claim, namely: whether this concept was a matter of procedural or substantive law; and, if substantive, whether Nigerian law recognises and applies the concept of a global claim as it is understood in English law, ie that a claimant is bound to recover nothing if it is established that a factor for which a defendant is not liable made a significant contribution to the damage. As the proper approach to causation could be determinative of many of the claims, it made sense to argue it fully at an early stage.

Lead claimants

The judge noted that the usual course in this sort of group litigation is to identify lead claimants and to progress from there. However, in this case, the lack of pleaded detail on causation precluded any sensible identification of lead claimants – though that could change in future, if appropriate amendments were sought and allowed

Factual trial

It was effectively an “all-or-nothing” case, in which the claimants were seeking to hold the defendants responsible for all loss arising from oil pollution in the Bille region between 2011 and 2013. The factual trial which followed the trial of preliminary issues would therefore examine all oil contamination in the region in that period, so that the significance of particular causes or events could be determined. This was broader than the proposal put forward by the defendants, who considered that the factual trial should focus only on the existence of causes of pollution for which they were not responsible.

Disclosure

The judge rejected the claimants' argument that, in light of the "informational asymmetry" between the parties, the defendants should be required to disclose all documents bearing on their operations in the Bille region during the relevant period, so that the claimants could identify particular polluting events and particularise their case on causation.

As the judge commented: "An information imbalance is not a sufficient reason to order disclosure, where relevance has not first been established"; and "Relevance to pleaded issues must be the touchstone". Documents could not be disclosable solely on the basis that they might have information which might assist the claimants in identifying events that had caused individual losses - that would be a classic fishing expedition.

"I repeat that the Claimants have chosen to bring a case based on multiple polluting events of many differing kinds occurring in a wide area over an extended period of time; it is for them to provide the necessary clarity so as to permit disclosure which is properly tethered to the issues. The Defendants are not to be expected to throw open the doors to their archives or to permit a general trawl through their records. The tail must not be allowed to wag the dog."

So, for example, the court refused to order broad disclosure, at this stage, of documents relating to the defendants' protection of the pipeline, since no specific events of third party interference causing loss had been pleaded.

However, the judge also rejected the defendants’ position that, in relation to certain categories of reports and other documents they had agreed to provide, disclosure should be given only insofar as such documents could be searched for by known incident number. In circumstances where the factual trial would need to focus on all oil polluting events in the region between 2011 and 2013, and where there was evidence that the Joint Investigation Visit reports (which were the first and main record of any spill event) were unreliable, proper disclosure would require the defendants to search not just for documents relating to spills which had an incident number, but any material which might point to other incidents. So, for example, to the extent that the defendants’ asset monitoring reports indicated a breach and/or spillage, they would be relevant and disclosable.

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