The Bodo Community & Ors v The Shell Petroleum Development Company of Nigeria Ltd

MR JUSTICE AKENHEAD: This overall case relates to claims for compensation by 11,000 or more individual inhabitants of an area in the Niger Delta known broadly as the Bodo Community. There are a large number of claims which have been brought together in group litigation, and the matter was transferred to the TCC last year. These claims are for damages and compensation, both at “common law”, and I use that term in parenthesis at this stage, and also under statute in Nigeria. It is common ground that the substantive law applicable to this dispute is Nigerian and it will therefore be necessary for the court to hear evidence as to Nigerian law.

There are claims for damages for shock and fear, annoyance, inconvenience, discomfort and illness as well as stress and anxiety in relation to individual claimants. There are a number of non-individual claimants also, but the matters, I now, address are primarily concerned with the numerous individual claimants. There are other claims for aggravating damages, for instance.

These claims are proceeding towards a main trial in May 2015 but it was agreed between the parties that it would be sensible to have preliminary issues, the results of which would in all probability inform the parties in relation to the substantive and factual issues which would have to be dealt with at the main trial. So, in the first meeting before the TCC, following extensive representations in late October last year, I made an order, formally issued on 2 December 2013 following the case management conference listed on 31 October 2013, and preliminary issues were ordered to be tried over five days, starting on 29 April 2014. Although the issues listed in the order made then were set out in the order, they have by agreement been modified somewhat to reflect further agreements and verbal changes to those issues.

I ordered, and as far as I recall it was by consent, that the parties have permission to rely on expert evidence in the field of Nigerian law at trial of these preliminary issues, limited to one expert for each party, with expert reports to be exchanged by 28 February 2014.

The claimants' Nigerian law expert, and indeed the defendant's, are former Supreme Court judges in Nigeria and the claimant's expert is Justice George Oguntade and the defendant's expert is Justice Emmanuel Ayoola.

The preliminary issues were selected because primarily from a practical standpoint it was understood that little or no evidence would be required other possibly than was broadly admitted in the pleadings and obviously at this stage assumptions may have to be made as to whether or not liability would in fact be established on any or all of the grounds put forward by the claimants.

What happened was that the law expert reports were exchanged by about the agreed date on 28 February 2014, but the solicitors have agreed that each expert will put in a supplementary report, which I understand will be next week, and the parties' experts are then to meet with a view to produce a joint statement on what they agree and disagree about by 14 April, although that has been amended today to 17 April 2014, the Thursday before the start of the Easter vacation.

The claimants' expert, Justice Oguntade, annexed to his first report an opinion or report of the British Institute of International and Comparative Law prepared by well-known British academics Professor McCorquodale and Dr Smit. That report runs to 24 pages and it is clear from his first report that Justice Oguntade primarily seeks to refer to and rely upon it for reasons set out at paragraph 46 of that report in the following way:

It might be thought that, if that is all that he was seeking to rely on the BIICL report for, it would be unexceptionable, but an analysis of that report itself shows that, apart from a number of references running into some 49 or 50 footnotes, a number of opinions are expressed by the learned authors of that report. I have absolutely no doubt that it would be inappropriate for there to be reliance on any of the opinions as such expressed by those two learned academics in this case, commenting, as they do you, on the laws of five other countries primarily other than Nigeria. The order reflects what the parties are entitled to do, and that is to serve one expert report on Nigerian law. Of course, it is or may well be the case that, in Nigeria, as in many other countries, including this, it is legitimate to look at the jurisprudence of other comparable jurisdictions for persuasive authority and even historical background, to support a particular conclusion. But it would be unacceptable for there to be a reliance on the opinions as such expressed in the BIICL report, although I see no particular problem in there being reference as appropriate, and as relevant, to the authorities, both academic and statutory and in terms of case law, referred to in that report. I hope, however, that the two experts can agree all or the large part of what I suspect is a largely unexceptionable conclusion at paragraph 46 of Justice Oguntade's first report. Of course, whether the experience in those five other countries materially assists the resolution of this case may be another matter, but I have no doubt it would be unfair to allow any extension to the expert order made in this case.

Next, the claimant has properly given advance notice to the defendant that Justice Oguntade was intending to attach three further reports to his supplementary report and those reports are much more factually based. The first report is the report from a Dr Alicia Fentiman, who is an academic (although she may be from her CV a practical academic) which reaches certain conclusions about the likely impact of an oil spill on people and communities. She records at page 2 of her report, served in advance of Justice Oguntade's supplementary report, a number of conclusions such as traditional finishing methods can no longer be employed in the creaks and waterways, creek water can no longer be used for a variety of traditional purposes, indigenous belief systems are affected, a sense of hopelessness is prevalent, levels of pollution have subsequently affected sanitary practices with a consequent diminution in personal hygiene. The extract of the report, which is indicated very much as a summary report, runs to 17 pages.

There is then a report from Professor Wessely. He is apparently, I do not know him, an eminent psychiatrist and is currently the President at the Royal College of Psychiatrists. In his summary report, which runs to about 20 pages, he has based his conclusions on interviews with some 15 to 20 individuals from the area, all or at least some of whom I assume are listed claimants. They include periwinkle pickers and other fisherman and boatmen, as well as people who did or do collect firewood in the area. He identifies a number of somatic symptoms, principally headache, eye problems, stomach problems, feelings of malaise and the like, experienced by a number of the inhabitants, I think particularly those who he interviewed, and he reac hesa number of conclusions towards the end of this report about the various symptoms which a number of the interviewees have. For instance, at paragraph 14.3 he says this:

At Paragraph14.4, he, illuminatingly possibly, says this:

So again, the report contains evidence of a number of interviews. It contains opinion and obviously, as I have indicated, conclusions.

The third report, which is to be referred to, is a report from a Victor Akujuru, who has a number of academic and practical qualifications and he has reviewed, as I understand it, the impact of how land, property and rental markets operated in Bodo with reference to the effects of the oil spillages and he has considered the valuation of land. So, again, this report contains a number of opinions and the result of researches into values and the like.

It is quite clear that there would be no conceivable ground for any of these reports being admissible as evidence in the preliminary issues hearing. That is for a number of reasons. First, the order only permits the expert evidence of one expert. The parties have proceeded on the basis up until now, four weeks before the preliminary issues, that there would be just one legal expert from each party. Secondly, for this to come in by way of a supplementary report, when supplementary reports were not even envisaged in the original order, and with no more than about three working weeks before the trial of the preliminary issues, would be grossly unfair to the fair conduct of this trial, because the defendant would simply have no opportunity to respond at all. But Mr Hermer QC, as helpfully and attractively as he could, sought to argue that really what Justice Oguntade wanted to attach these reports to his supplementary report for was to illuminate and provide assistance to the court, particularly with regard to the sort of problems which the court will or should have regard to, primarily as a matter of policy as I understand it, in reaching any decision on some of these preliminary issues.

Whether that is right or not and whether these are just to be illuminatory, if they are to have any relevance to the decisions which the court has to make on the preliminary issues, then the problem remains that the court could not countenance their admissibility or admission into evidence under any under guise, given the lateness at which this has come. I do not accept, and I am unpersuaded, that these reports, if they really were relevant in any way at all, should not have been served with the first report and indeed application made to the court for permission several months ago at least, if not before, for them to be permitted.

There are a number of points. Obviously the case is pleaded as I have already indicated: compensation claims for shock and fear, annoyance, inconvenience, discomfort and illness, distress and anxiety. Now, all or some of those words are sometimes described, at least within the English jurisdiction, for claims in negligence and nuisance, amongst other tortious claims, to found, in appropriate cases on the facts, by reference to an entitlement to general damages. Whether the same is the position under Nigerian law I know not, but the court obviously has to assume that the claimants may be able to establish, or individual claimants may be able to establish, that, as a result of any actionable events which occurred, namely oil spillages, that any given individual suffered any of those individual problems as pleaded by the claimants. It is therefore not particularly or obviously necessary for the court to know in any detail whether individuals or generally claimants actually did suffer shock and fear and the like. What the court is concerned with is whether, if the facts are established that individual claimants suffered shock and fear and the like, they are entailed in principle to claim damages, general damages, for those sort of problems.

Now, again, it is going to be unexceptionable, I imagine, although I make no finding about this, that oil spills, serious oil spills, in the Niger Delta or indeed elsewhere can cause serious disruption to the lives and the commercial well-being of communities and it is at least conceivable that shock, fear, annoyance, inconvenience, discomfort, illness, distress and anxiety may be suffered by individual claimants who may have an entitlement to sue the people who caused such spillage. They may suffer those sorts of problems. The court does not need evidence or illumination from these types of reports to have that in mind.

So I am therefore not prepared to allow these final three reports from Mr Akujuru, Professor Wessely and Dr Fentiman to go in. I am not prepared to be prescriptive about what the claimants' law expert, Justice Oguntade, actually says in his supplementary report, but, if he is able to formulate matters in an unexceptionable way, then, even if it does relate to very broad facts, which would be likely to be accepted, so to speak, without any evidence from a Nigerian court, then I can see that it may well be the case that that would be unexceptionable as such. But it does seem to me that I will rule, if necessary, when that report is served, on any challenges to the admissibility of its contents and ditto if Justice Ayoola does the same. Probably any such challenges would have to be dealt with at the trial of these preliminary issues.

But, be that as it may, that would be my ruling. I also ought to make it clear that Mr Hermer QC has quite properly, in the light of observations and indications from the bench, indicated that there will be no reliance on or exhibiting of these reports to the supplementary report of Justice Oguntade in any event and he will seek to overcome their omission from his supplementary report in a way that Mr Hermer QC anticipates will be unexceptionable.