What is a continuing nuisance?

30 January 2021 by David Hart KC

Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited [2021[ EWCA Civ 63 – read judgment

A traditional phrase in the common law, such as “continuing nuisance”, may mean a number of things in different contexts, as we will see clearly from this oil spill case. The claimants argued, unsuccessfully, that the presence of oil from the spill which had come onto their land was a continuing nuisance for as long as it remained there – which, they said, should get them around the limitation problems in their claims.

Context

There is an oil field 120km off the coast of Nigeria. Oil is extracted by Shell using a mobile oil rig (Floating Production Storage and Offloading facility, or FPSO in the jargon), with the oil being sent from the FPSO, via submersible flexible flow lines, to a Single Point Mooring buoy for onward discharge into oil tankers.

On 20 December 2011, one of the flow lines to that buoy ruptured, and in the course of the next 5 or 6 hours large quantities of oil flowed into the sea. The vessel onto which the oil was to be loaded was the MV Northia. Criticism is made by the claimants as to why the operators of the FPSO or of the vessel did not notice that the amount of oil coming from the FPSO did not accord with the amount of oil received by the vessel.

The claimants (some 27,800 individuals and 457 communities) live and work along the Nigerian coast. Their claim against various Shell companies is that oil washed up onto their land, and affected their fishing, farm land, drinking water, mangroves (wood for energy), shrines, land values and industries associated with fishing and farming.

The claimants face various problems before they get to the underlying merits of their claims. They first issued proceedings on 13 December 2017 (just under 6 years after the spill date) against Shell companies no longer parties to the proceedings and SNEPCO, a Nigerian company, current D2. D1, (STASCO, a UK-domiciled company) was sought to be joined on 4 April 2018, more than 6 years after the spill.

The limitation period in nuisance is 6 years from the accrual of the cause of action.

But the claim against Nigerian SNEPCO (within the 6 years) can only proceed in the UK, if the claimants also have a claim against STASCO – the UK “anchor” defendant in the jargon of these multi-party jurisdictional cases. Nigerian SNEPCO operated the FPSO (the immediate candidate for the thing which went wrong), and UK STASCO had little to do with that. Nearly two years later, the claimants sought to make an additional claim against STASCO in respect of its management of MV Northia, the vessel receiving oil at the relevant time: by order of the court below, the deemed date for commencement of this specific claim was 2 March 2020, so well after the 6 year limitation period if it ran from the spill.

There was a considerable debate about when the oil reached the relevant bits of coasts and inlets. The judge had concluded that many claimants (but not necessarily all of them) would have been affected before 4 April 2012 (6 years before the STASCO joinder date), some might have been affected between April 2012 and June-October/November 2013, but there was no reason to think that they would have been affected thereafter. On any view, the claims in respect of the MV Northia would be out of time – unless they involved “a continuing nuisance.”

The claimants’ argument

The way out of these interconnected problems of limitation and jurisdiction was said to be that the claimants had a continuing cause of action in nuisance whilst the oil remained on their land. If Shell and indeed anyone else had not carried out any clean-up, then the cause of action remained ticking away, day on day, until the oil was removed or remediated.

The Court of Appeal

The Court said that this was not a case of a continuing nuisance.

A cause of action in tort is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law. Thus any claim in negligence in this case, arising out of the event when the oil leaked into the sea on 20 December 2011, gave rise to a single cause of action, which, as a matter of law, was completed when damage occurred.  at [52]

So the damage occurred when the oil landed.

So what was a continuing nuisance in law?

A continuing cause of action is more unusual. In Hull v Chard Union [1894] 1 Ch 293, Lindley LJ described a continuing cause of action as “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.” ….the underlying notion, that a continuing cause of action will usually involve a repetition of the acts or omissions which gave rise to the original cause of action, continues to make logical sense in the twenty-first century.

The typical continuing nuisance is encroachment of tree roots from D’s land to C’s land. Often the tree roots cause dehydration in the soil below C’s land which may cause cracking to C’s property. D’s failure to abate that nuisance by removing or pruning the tree is a continuing duty. In a recent case, about Japanese Knotweed, Williams v. Network Rail, the CA decided that the continuing presence of roots could confer a cause of action even though they had not caused physical damage to the properties.

The CA said that the flaws in the claimants’ arguments against Shell were these:

(a) it equated the presence of the oil (colloquially, a nuisance) on the claimants’ lands with the legal question of when each claimant gained a cause of action;

(b) it equated nuisance with physical damage or harm.

The CA referred to the consequences of equating these propositions. A company would be responsible for the consequences of a one-off leak even 50 years after the spill if the contamination remained on the claimants’ land.

But the CA made it clear that the cause of action did not arise when the spill occurred. Each claimant did not gain a cause of action until the oil actually arrived on his or her land. This would have happened to most claimants within a short time of the spill. But the timing of this might be different for those claimants who lived up one of the delta channels further away from the FPSO. So whilst most claimants’ claims may be statute-barred, those further away may still be within the 6 year period in respect of the claim against SNEPCO (the Nigerian subsidiary) but will face further difficulties (as we have seen) if their real claim is against the anchor defendant STATSCO in respect of the vessel MV Northia. If the STATSCO claims are bound to fail, then the SNEPCO claims (in the UK courts) fall with them.

An important element of the claimants’ case was that Shell remained responsible as the causer of a continuing nuisance. At [70ff] the CA dealt with this argument; it said there was no authority in support of it. The claimants did not quite go as far as saying that Shell was obliged to clean the contamination up (see [73]) but said that the cause of action remained until the contamination was cleaned up (whether by Shell or the claimants or whoever). Part of the problem in the argument is identified in [74]-[75]. An important element in liability for nuisance is the occupier’s control of his or someone’s land and hence his ability to prevent or eliminate the nuisance. Once the oil had left the pipe, Shell did not have this control; it said it could not clean up the sea unilaterally, without regulatory approval, and it would also need access to land in the affected delta to remediate things there.

As the CA emphasised, this did not mean that a claim properly brought within the limitation period against a defendant over which the UK court had jurisdiction could not recover the costs incurred or to be incurred by claimants on remediating their land.

Another sort of continuing nuisance

This is the same phrase used in a different sense, in respect of a test for liability in nuisance. A defendant may be liable not only for causing the state of affairs which creates a nuisance but also for failing to stop that state of affairs when he has sufficient control; in that rather differing sense, he will be continuing a nuisance initially created by others. This is well-established law going back to the 1930s and 1940s.

Comment

For an environmental lawyer, this is a fascinating case. There has been considerable ambiguity in the law as to what a continuing nuisance is and how the concept fits with the law of limitation. One issue is whether a big spill on D’s land which has gone deep into the underlying geology beneath the land can remain actionable because it continues to affect neighbouring properties – even though it started affecting those properties many years ago. A similar problem arose in the Cambridge Water case: see [36] of the present judgment.

We tend to look to US case law to guide us as to the issues in environmental law, if not necessarily to the answers: US nuisance law is state law, rather than federal law, so each state can do its own thing, and there has been plenty of high-value litigation over the last 50 years telling us what different answers those states have come up with. An excellent book on all this is Valerie Fogleman’s comparative study of US and UK environmental law – here.

The dilemma, well pointed up in this case, is between either allowing long-tail liabilities to persist contrary to one policy element of the law (i.e. limitation), or preventing the recovery of current and future losses relating to acts and omissions occurring many years before the claim is brought.

The CA emphatically chose the second.