Alerter by Freya Foster & Douglas Maxwell – When does a cause of action accrue in private nuisance claims? Jalla v Shell

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The Supreme Court in Jalla v Shell International Trading and Shipping Co Ltd ([2023] UKSC 16) (“Jalla”) has clarified that a continuing nuisance requires a cause of action that is “continually accruing”.  The practical result is that where an interference with the use and enjoyment of land is caused by a one-off event, such as the isolated escape of oil or flooding caused by a dam burst, the cause of action crystallises, and the period of limitation begins to run once the land is affected.  As a result, a cause of action does not continually accrue for as long as the land is subject to the effects (however severe) of the original interference.

BACKGROUND

In Jalla, the two appellants had initiated proceedings in England and Wales against two British domiciled companies (Royal Dutch Shell (“RDS”) and Shell International Limited (“SIL”)) and a Nigerian company, Shell Nigeria Exploration and Production Company Limited (“SNEPCO”) in December 2017. The appellants, Mr Jalla and Mr Chujor, purporting to represent 27,830 other claimants, alleged the British defendants were directly or vicariously liable for the actions of the Nigerian company, which was conducting operations in the Bonga oilfield 120km off the coast of Nigeria when a major oil spill occurred.  The spill lasted five to six hours and stopped when the pipeline was turned off.  The oil washed up on the claimants’ land.

In April 2018, the appellants amended their claim, abandoning the claims against RDS and SIL and seeking to add a new British domiciled defendant, Shell International Trading and Shipping Co (“STASCO”), more than six years after the oil spill had occurred in December 2011. As the court’s jurisdiction over the claims hinged on the ‘anchor defendant’ gateway, the question of whether the claims against STASCO were brought out of time took on crucial importance.

The key issue before the Supreme Court was whether the appellants had a cause of action for a continuing nuisance which would defeat the respondents’ limitation defence.

IDENTIFYING A COUTINUING NUISANCE

The Supreme Court (§ [18]) returned to the core principle of the tort of private nuisance as recently set out in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 (“Fearn”), namely:

1. The tort of private nuisance is a tort to land (i.e. it is a property tort).
2. Nuisance can be caused by any means and does not require a physical invasion.
3. The interference must be substantial and must be an interference with the ordinary use of the claimant’s land.
4. In deciding whether there is a private nuisance, one must have regard to the character of the locality.
5. Coming to a nuisance is no defence.
6. It is not a defence to a claim for private nuisance that the activity carried on by the defendant is of public benefit although this may be relevant in determining the appropriate remedy.

In Fearn, the Supreme Court held that the Tate Modern were committing the tort of private nuisance by using the top floor of the Blavatnik building as a public viewing gallery which looked straight across into the living areas of the claimants’ flats.

Disagreeing with the views expressed by the lower courts that continuing nuisance was unusual, in Jalla, Lord Burrows (with whom Lord Reed, Lord Briggs, Lord Kitchen and Lord Sales agreed) observed (§26) that:

In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’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.  For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis.  So, for example, smoke, noise, smells, vibrations and, as in Fearn, overlooking are continuing nuisances where those interferences are continuing on a regular basis.  The cause of action therefore accrues afresh on a continuing basis.

Lord Burrows added that:

1. a continuing nuisance is in principle no different from any other continuing tort or civil wrong (§31);
2. if the limitation period is one of six years from the accrual of the cause of action, damages at common law for a continuing nuisance cannot be recovered for causes of action (i.e. for past occurrences of the continuing nuisance) that accrued more than six years before the claim was commenced (§32); and
3. there is a further linguistic complication in respect of a continuing nuisance. This is because of the concept of the defendant “continuing” a nuisance.  What is meant by this is that a defendant who has not created the nuisance will be liable for it (if damage is caused to the claimant) where, with actual or presumed knowledge of the continued state of affairs, the defendant does not take reasonable steps to end it.  But the “continuing” of the nuisance in this sense is not the same as there being a continuing nuisance in the sense of there being a continuing cause of action with which the Court was here concerned (§33).

THE REASONING OF THE SUPREME COURT IN JALLA

The Supreme Court unanimously rejected the appellants’ submission that there was a continuing nuisance as the oil was still present on their land, and had not been removed or cleaned up. Lord Burrows reasoned (at §34-40) that to allow the appeal would:

1. allow for the limitation period to run indefinitely until the land is restored;
2. mean that the tort of private nuisance would be converted into a failure by the defendant to restore the claimant’s land; and
3. may produce difficulties for the assessment of damages, in particular the relevant date of assessment.

The Supreme Court gave significant weight to the important public policy rationales justifying limitation, citing the Law Commission Consultation Paper No 151, Limitation of Actions (1998)1.22 – 1.38. The Supreme Court noted that to do otherwise would result in “a continual re-starting of the limitation period until the oil was removed or cleaned up.”

CONCLUSION

The Supreme Court in Jalla has clarified that to establish a continuing nuisance there must be repeated activity which causes continuing undue interference: the focus is on whether the cause is continuing not the result. In doing so, the court has adhered to the foundational principle that the tort of nuisance is an interference with the property rights held by the owner of land: it is not defined by the physical damage caused.

This decision reaffirms the importance of prompt action where a private nuisance claim arises – even if the case involves a continuing nuisance such that limitation accrues on multiple occasions, recovery of damages outside the limitation period may not be possible. In line with the general policy underpinning limitation, action should be taken sooner rather than later.

While it is not clear whether this decision constitutes the end of the road for the Jalla representative claims, it is notable that the effect of the Supreme Court’s decision is that many of the claims against STASCO are, in the words of Coulson LJ in the Court of Appeal, “likely to be statute barred” (at §87). Given the English court’s jurisdiction over the Nigerian operator depends on the claims brought against STASCO, this case is an illustration of how similar “anchor defendant” cases might play out with a focus on discrete issues such as limitation following the decisions of the Supreme Court in Vedanta Resources v Lungowe ([2019] UKSC 20; [2020] AC 1045) and Okpabi v Royal Dutch Shell Plc ([2021] UKSC 3; [2021] 1 WLR 1294).

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