King Felix Sunday Bebor Berebon & Ors v The Shell Petroleum Development Company of Nigeria Ltd

INTRODUCTION

These proceedings concern land in and around Bodo Creek, in Nigeria, which was the subject of two oil spills in 2008 and 2009. Prior to the commencement of the proceedings, the defendant admitted liability in respect of those spills under the Nigerian Oil Pipelines Act 1990 (“the OPA”). The 18 claimants brought claims on a representative basis. They originally sought damages and a mandatory injunction requiring the defendant to clean up the area, or damages in lieu of an injunction. One of the many issues that now arises concerns the capacity of those 18 claimants to pursue the proceedings.

On 20 June 2014, Akenhead J handed down a judgment which resolved a variety of preliminary issues between the parties ([2014] EWHC 1973 (TCC)). Thereafter, in October 2014, the parties reached an agreement, referred to as the Narrowing Agreement, pursuant to which a settlement agreement was outlined for all claims, save in respect of the clean-up claim (i.e. the mandatory injunction or the reasonable cost of remedial works in lieu). Following a mediation, all but the clean-up claim was settled by an agreed payment by the defendant of £55 million. That final settlement was reflected in a Consent Order approved by Akenhead J in January 2015.

The clean-up claim was stayed for two years and was to be struck out in October 2016, although the claimants had liberty to apply to restore that claim before that date. The stay was to allow the remedial scheme to be put in hand under the auspices of the Bodo Mediation Initiative (“BMI”). The evidence is that steps were taken to commence the remediation scheme but, for a variety of reasons, no substantive remedial works have yet taken place. Some of the reasons for that are outlined in Section 5 below. In consequence, on 13 October 2016, the claimants applied to this court to lift the stay.

The defendant opposes that application. Amongst the many points taken by the defendant, the two most significant for present purposes are that:

I have endeavoured to deal with as many of the issues between the parties as I can, following the full day’s hearing on 16 June 2017 and the huge costs said to have been incurred. Thus, in Section 2, I set out an outline chronology. In Section 3, I deal with the arguments concerned with the validity of the claimants’ application to lift the stay, and whether or not that application should be adjourned. In Section 4, I deal as a matter of principle with the test to be applied on the application to lift the stay. In Section 5, I consider the issues of principle relating to the evidence that goes to the only realistic ground of opposition to that application on the merits, namely the defendant’s case that those whom the claimants represent have prevented the remediation works from going ahead, such that any continuation of the clean-up claim would be an abuse of process. In Section 6, I deal much more briefly with issues relating to the defendant’s application to strike out. In Section 7, I set out the way forward in this case, taking into account my earlier conclusions of principle.

OUTLINE CHRONOLOGY

Both parties were anxious to draw my attention to material that predated Akenhead J’s judgment of June 2014 and the subsequent agreements between the parties. I have read the extensive evidence dealing with those events, but I consider them to be of peripheral relevance to the issues before me, and I do not set them out here.

The Narrowing Agreement was dated 22 October 2014. Recital E removed a variety of issues from the litigation including the volume of oil released in the spills and allegations in respect of the defendant’s conduct prior to, during, and since the spills. Recitals F and G were in the following terms:

“F. In circumstances in which the issues of clean up and remediation of the Bodo Creek (as defined in accordance with paragraph 1 below) are the subject of an independent mediation led by the former Dutch Ambassador to Nigeria, the Claimants’ Clean Up Claims as defined in paragraph 16 below shall be stayed and shall be struck out if not restored in accordance with paragraph 16.

G. The parties enter into and will implement this Agreement in a spirit of cooperation and good faith in the expectation that it will reduce the work that is required for the trial set down for May 2015 (the “trial”) and, if possible, facilitate an early resolution of those Claims. This Agreement shall be interpreted and enforced so as to ensure that the Parties abide by the intentions and objectives, set out herein, upon which this Agreement is based.”

The critical clauses for present purposes are clauses 16 and 17. They provided:

“Claim for injunctive relief or damages in lieu of clean up and remediation

16.

The Claimants shall not pursue their claims in relation to clean up and remediation of the Bodo Creek and in particular their claims for injunctive relief or damages in lieu of the same (the “Clean Up Claims”) and the Clean Up Claims shall be stayed until further order and shall be struck out automatically at 4:00pm on the date two calendar years from the date of this Agreement (the “Strike Out Date”). This Agreement is subject to the Claimants being at liberty to apply to the Court to restore the Clean Up Claims for trial by 4:00pm on the date seven days prior to the Strike Out Date.

17.

Save for paragraph 16 above and this paragraph 17 the Clean Up Claims shall not be subject to this Agreement.”

As noted above, the Narrowing Agreement then set out an agreement by the defendant to pay substantial compensation to the claimants in respect of their other claims.

There was a ‘Consent Order To Go With The Narrowing Agreement’, dated 31 October 2014, but not sealed until 19 December 2014. Clause 6 of that Consent Order provided as follows:

“That part of the New Bodo Community Claim relating to clean up and remediation (namely paragraphs 34 to 39 and 65 to 67 of the re-amended Particulars of Claim dated 10 July 2014 and paragraphs 21 to 27 and the first three lines of paragraph 65(1) of the Schedule of Loss dated 14 February 2014 in the New Bodo Community Claim) will be stayed until further order and shall be struck out automatically at 4:00pm on the date two calendar years from the date of the Narrowing Agreement (the “Strike Out Date”); the Claimants being at liberty to apply to the Court to restore for trial those parts of the New Bodo Community Claim that are pleaded in those paragraphs, any such an application to be issued and served by 4:00pm on the date seven days prior to the Strike Out Date.” (Emphasis supplied)

Following a mediation, there was a further Consent Order dated 19 January 2015 dealing with the £55 million to be paid by the defendant as damages based on its admission of liability to pay compensation under the OPA.

It is clear from the evidence that the driving force behind the Narrowing Agreement and Consent Orders noted above was the BMI, originally called the Bodo Mediation Process (“BMP”). The BMI involved not only the defendant and ‘the Bodo Community’ (sometimes described as a party to certain agreements, but not a legal entity in its own right and a deleted claimant in these proceedings), but also various other stakeholders, including the Rivers State Sustainable Development Agency, the National Coalition on Gas Flaring and Oil Spills in the Niger Delta, the Embassy of the Kingdom of the Netherlands, and the United Nations Environment Programme. Nigerian Federal and State Government Institutions were also involved in the BMI, including the National Petroleum Investment Management Services, the National Oil Spill Response and Detection Agency, and the Rivers State Ministry of Environment. Each of these stakeholders agreed to operate together under the umbrella of the BMI. The BMI had its own chairman, called regular meetings which were minuted, and issued regular reports.

Pursuant to a Memorandum of Understanding (“MoU”) made on 30 April 2015, the way forward under the BMI was set out in some detail. All the stakeholders identified in the previous paragraph were named in the MoU. Amongst other things, it was agreed between the defendant (referred to in this and other documents as ‘SPDC’) and ‘the Bodo Community’ that:

“1.

BMP comprising of Working Groups (including a technical Working Committee) a Steering Committee and a Plenary (general assembly/overall decision making body), will continue to cover all relevant aspects and activities related to the mediation. The Plenary reviews and endorses the proposals by the Working Groups, the overall work plan and approves the Project Director for the clean-up, remediation and restoration works.

2.

The clean-up, remediation and restoration of the Identified Areas in BODO will be carried out in accordance with Nigerian law, by reputable contractors with proven international track record and experience with large scale clean-up, remediation and restoration works in a complex environment approved by the BMP Plenary…

4.

SPDC will be responsible for the cost of clean-up, remediation and restoration of the Identified Areas under consideration, including the related bidding and contracting processes which shall be in accordance with the Joint Operating Agreement of SPDC, based on the recommendations of the Technical Working Committee and taking into account the applicable approval procedures of the relevant Nigerian authorities, including the National Petroleum Investment Management Services (NAPIMS).

5.

In order to ensure that the clean-up, remediation and restoration of the Identified Areas is achieved, Bodo will grant and maintain unfettered access to SPDC, the Project Director, the Contractors and all persons performing or related to the performance of the clean-up, remediation and restoration works of the Identified Areas.

6.

The day-to-day implementation of the clean-up, remediation and restoration work plan for the Identified Areas in BODO will be guided and supervised by the Project Director…”

It is common ground that, two years on, little or no progress has been made in carrying out the remediation scheme envisaged in the MoU.

The defendant identifies two main ways in which it says that those whom the claimants purport to represent have prevented those remedial works from taking place. The first relates to physical violence, threats, and hostility from some of those said to be represented by the claimants, aimed at those charged with cleaning up the pollution. These difficulties can be seen, at least in outline, from the following documents:

The problems continued into 2016. One of the issues that arose was the complaints from some inhabitants as to who was to carry out the work and what they would be paid. They did not like the non-local contractor who had been chosen to undertake some of the works. Work did not go ahead.

The second area of difficulty has stemmed from the six sets of legal proceedings, started in Nigeria in 2016 and 2017 by the claimants or those whom they purport to represent each of, in which an injunction was sought to prevent the remediation works being carried out. Given the evidence produced recently by the claimants as to the very high level of pollution around Bodo Creek, it may be hard to imagine anything more self-defeating than attempts by those affected to stop the clean-up. That doubtless explains the frustration apparent in several of the documents produced by the claimants’ representatives. But the fact of these various proceedings, and the injunctions which have been sought, is incontrovertible.

The first claimant, King Felix Berebon, died in 2013. There was then a power struggle which only ended in 2016 when King John Berebon’s accession was announced. As noted in greater detail below, King John Berebon was one of those who had sought an injunction preventing the carrying out of the remedial works.

In accordance with the MoU, it is the BMI which is the key to getting the remediation scheme carried out. So it is right to note that in recent months they have become more optimistic about the prospects of the commencement of the remediation scheme. On 11 October 2016, the chairperson of the BMI, Mr Samiama, wrote on headed notepaper to say that, if the removal of the court cases and injunctions happened, because the leadership tussle within the community had been resolved, the work could be re-mobilised. The letter included an appeal “to the leadership and good people of Bodo community to continue to work with the BMI to bring this clean-up process to a successful conclusion.”

On 26 January 2017, Mr Samiama said that all outstanding issues had been resolved and that “both SPDC and the Bodo community are now ready and willing to reengage and move forward with the clean-up and remediation of polluted sites in the Bodo community.” That was before the two new sets of injunction proceedings, referred to at paragraph 68 below.

As noted above, on 13 October 2016, the claimants sought to lift the stay, and for the stay then to be re-imposed for another year (i.e. up to October 2017). The defendant's solicitors responded on 25 November 2016. Amongst other things they said:

“We have already provided a detailed account of events so far in our letter dated 1 August 2016. In summary, as set out in our letter, the actions of members of the Bodo Community have included:

•

Making repeated threats in respect of the personal safety of those participating in the BMI leading to visits of SPDC contractors having to be aborted and representatives of the Bodo Community in the BMI withdrawing their representation on behalf of the Bodo Community.

•

Initiating law suits before the Nigerian courts to obtain injunctions to prevent clean-up under the auspices of the BMI.

•

Shutting down the project sites and preventing the necessary access required to progress the clean-up.

•

Refusing to honour the obligations of the Bodo Community under the Memorandum of Understanding.

•

Making repeated and unreasonable demands on SPDC as preconditions to allowing clean-up to progress.

•

Demanding that SPDC, instead of cleaning up and remediating the Bodo environment, distribute to the members of the Bodo Community the amount it would have spent on the exercise…

In the light of all the above, SPDC wants to avoid a situation whereby a stay is put in place for a further year but the parties find themselves in exactly the same position in 12 months’ time due to further obstructions and delays caused by the activities of members of the Bodo Community or by a court injunction obtained by the Community to restrain the clean-up. Our client would like to think that, as Mr Leader asserts in his witness statement, “clean-up is now due to start imminently”, but is understandably concerned that this will turn out to be another false hope given its prior experience in dealing with the Bodo Community in relation to clean-up.

For these reasons, SPDC would only be willing to consider a further stay as you suggest on the basis of a consent order that:

1.

The Claimants, on behalf of the Bodo Community, give an undertaking that:

(a)

the Bodo Community will immediately ‘grant and maintain unfettered access to SPDC, the Project Director, the Contractors and all person performing or related to the performance of the clean-up, remediation and restoration works of the Identified Areas’ or works related thereto in accordance with clause 5 of the Memorandum of Understanding (“MoU”) dated 30 April 2015, and that this access will be sustained without interruption until the completion of the three phases of the project set out at clause 7 of the MoU.

(b)

the pending actions before the Nigerian Court brought by members of the Bodo Community against (i) SPDC and/or (ii) members of the Bodo Mediation Committee and/or (iii) contractors appointed under the MoU and/or (iv) Voluntary Stakeholders and Federal and State Government Agencies listed in the MoU which seek to restrain or prevent clean-up in any way will be discontinued by the Claimants in those actions by 12 December 2016 and no further attempts to prevent any clean up activities will be made by or on behalf of any members of the Bodo Community by way of legal challenges or otherwise…

2.

Leigh Day gives an undertaking that they would use their best endeavours to ensure that their clients comply with the undertakings set out in 1(a) and (b) above.

3.

Any breach of the above undertakings will result in the clean-up claim being struck out.

4.

The clean-up claim shall be automatically struck out at 4:00pm on 15 October 2017, unless the Claimants apply before that date to show good cause why it should not be struck out, supported by written evidence as to their compliance with the terms of this order in respect of the granting and maintaining of unfettered access.

5.

Parties shall bear their respective costs for this application.”

The claimants refused to enter into a consent order on the basis proposed. I understand that there were ‘without prejudice’ negotiations but, as the Leigh Day open letter of 30 January made clear, they refused to the imposition of any conditions on the lifting of the stay, a stance which made agreement impossible. On 29 March 2017, the defendant’s solicitors repeated their position that they would agree to the continuation of the stay subject to those terms, but again the claimants declined to agree.

THE APPLICATION TO LIFT THE STAY: VALIDITY

The Existing Claimants

There were originally nineteen claimants. The nineteenth, described as “the Bodo Community”, was not a separate legal entity and had no legal status. It was deleted as a claimant pursuant to Akenhead J’s judgment in 2014.

The first claimant is said, at paragraph 13 of the Particulars of Claim, to be “the King and Paramount Ruler of the Community”. The second to eighteenth inclusive are said to be “the members of the Council of Chiefs and Elders of the Community, duly appointed under the customary law of the Community”. The basis on which these eighteen claimants pursue the defendant is as follows:

“15.

The King and/or the King and Council, hold and will hold as trustees for the benefit of the Community:

(a)

The Community Interest in the Community Land;

(b)

The causes of action stated hereunder for damage to the Community Land and loss suffered by the Community in respect of their ownership of the Community Interest in the Community Land;

(c)

The causes of action stated hereunder for compensation for damage to or loss suffered by the Community in respect of the Other Common Interests of the Community;

(d)

All damages or other compensation recovered in these proceedings to be applied in accordance with the customary law of the Community or as directed by the Court pursuant to s.21 Oil Pipelines Act 1990 of Nigeria.

16.

Further or alternatively the King and/or the King and Council are entitled in Nigerian substantive law to bring this action as representatives on behalf of the Community and in addition to their capacity as trustees and/or representatives, have, as members of the Community, the same common interest as other members of the Community in the Community Interest in the Community Land and the Other Common Interests of the Community.”

In its defence, the defendant noted that the first claimant was dead and denied that the first claimant and/or the second to eighteenth claimants occupy the position of trustees and/or that the interests and causes of action pleaded at paragraphs 15(a)-(d) of the Particulars of Claim were the subject of a trust as a matter of Nigerian law (paragraph 20.1 of the defence). However, paragraph 20.2 of the defence admits and avers that the first claimant was entitled, as a matter of Nigerian customary law, to bring a representative claim on behalf of the members of the Bodo community and was a person to whom the court could have ordered compensation to be made in accordance with s.21 of the 1990 Act. It is also admitted that the first to eighteenth claimants were entitled to bring a representative claim in respect of common rights to use the communal lands. Beyond that, the defendant denied that the members of the community had additional common interests.

The current position in respect of the eighteen claimants is far from clear. I am told that some of them, in addition to the first claimant, are now dead. Moreover, whatever the position was at the outset of the proceedings, claimants 2-18 are not now members of the Council of Chiefs and Elders, because that Council does not exist and has not existed for some time. Indeed, the Council of Chiefs and Elders no longer appears to be of importance; in the material recently provided by the claimants, there are numerous references to a different Council altogether, namely the Council of Traditional Rulers.

The uncertainty as to the proper identification of the relevant claimants appears to be acknowledged by Leigh Day. In Mr Leader’s fourth statement, he refers to the need to replace the first claimant with King John Berebon, and to replace other claimants with current members of the Council of Chiefs and Elders (when that Council is reconstituted). The difficulty, as he acknowledges in paragraph 20 of that statement, is that there is currently no Council of Chiefs and Elders and he does not appear to know when/if it will be reconstituted.

The Defendant’s Submissions

The defendant takes two points arising out of the uncertainty as to who the correct claimants might be. First, they say that, on any view, the existing claimants do not have the right or title to continue these proceedings. Thus they submit that, at the time of the application to lift the stay on 13 October 2016, the eighteen claimants did not have the necessary locus, and that therefore the application was invalid. In addition, they argue that, at that same date, Leigh Day did not have authority to act for the claimants and that this is a further reason why the application to lift the stay is invalid.

However, the defendant submits that its application in respect of the invalidity of the underlying application to remove the stay cannot be determined at this stage and should instead be adjourned. They say that it was only on 15 June 2017 (the day before the hearing) that Mr Leader provided his fourth statement, which set out some further detail about the position of the existing claimants, and served the formal application for substitution. The defendant submits that, in those circumstances, an adjournment is appropriate in order to allow them time properly to assess the new material and ascertain the true position.

The Claimants’ Submissions

The claimants submit simply that, since they were the only claiming parties at the time of the stay, only they could apply to lift that stay. Therefore they say that, whatever the position is in respect of the application to substitute, the court should go ahead to hear the application to lift the stay.

Analysis and Conclusions

It seems to me that the defendant’s case that no valid application was made in October 2016, and that therefore the clean-up claim has been struck out in accordance with the Consent Order of 19 December 2014 (paragraph 9 above), although technical and even unattractive, cannot be dismissed out of hand. It needs to be approached from first principles.

Take the deaths of certain of the claimants. That may profoundly affect the validity of the claims. In Kimathi & Others v Foreign and Commonwealth Office (No. 2) [2016] EWHC 3005 (QB) Stewart J said that a personal injury claim brought in the name of the deceased person was a nullity and that, accordingly, that claim would be struck out. On the face of it, that might suggest that, insofar as the application in October 2016 was made on behalf of the first and other claimants who were dead, it was a nullity.

Mr Hermer argued that different considerations applied in cases like this, when the deceased’s claims were brought as a part of a representative action. That may be right, but neither side had prepared to deal with the point at the hearing, and there was insufficient time for it to be argued out properly. The fact that there was a debate on this topic at all rather suggested that Mr Webb was right to seek an adjournment so that the arguments concerned with the validity of the application to lift the stay could be dealt with properly.

There was similar confusion in respect of those claimants who had been part of the Council of Chiefs and Elders but who were now not part of that Council, partly because that Council does not currently exist. Again, since this has only recently been established, there is force in the point that this is a matter that needs to be explored further before it can be finally determined. I note that the defendant has made certain admissions as to the status of the existing claimants (paragraph 24 above) so I would be hopeful that, once the further information has been considered, progress on these issues may be made.

There is also the separate question of Leigh Day’s continuing authority to act for the claimants, both as at 13 October 2016 and today. Paragraph 7 of Mr Leader’s fourth statement is vague and, to the extent that he claims to have been given direct instructions to extend the stay or restore the clean-up claim for trial from claimants who were dead at the time that the application was made, obviously erroneous.

Further, as recently as 26 May 2017, King John Berebon wrote to the Ambassador of the Embassy of the Netherlands to record that:

“It is important to put on record that Leigh Day & Co has no mandate or any new brief to act or represent Bodo community in any capacity, as such should not be copied to any letter concerning Bodo people as we are still asking the law firm to give account of all its actions and inactions to Bodo people as regard all funds collected on our behalf.”

That might suggest that, on the face of it, Leigh Day may not have had authority to act either now or when they made the application to lift the stay.

Mr Leader’s third statement, dated 13 June 2017, exhibits a second letter from King John Berebon dated 7 June, which not only indicates his confidence in the mediation process and the good progress that had been made since he was appointed last year, but also states that he and other members of the Council of Traditional Rulers instructed Leigh Day, by a formal resolution on 21 September 2016, to apply to extend the stay of the clean-up claim. He said that his earlier letter which indicated the opposite was based on “some unfortunate misinformation and misunderstandings”. The misinformation and misunderstandings are not further identified, let alone explained.

In my view, the question of the claimants’ title to sue, and Leigh Day’s authority to act for them, are inextricably bound up together. The information on this topic set out by Mr Leader on behalf of the claimants in his third and fourth statements was provided too close to the hearing date to allow the defendant to deal properly with it. Moreover, the fact that there is now a belated application for substitution of the first claimant indicates that, even on the claimants’ case, changes are required.

In all the circumstances, therefore, it seems to me that the prudent course is to adjourn the application to lift the stay, in order that the validity of that application can be tested, if that is something which the defendant wishes to do, having carried out a proper analysis of the relevant information relating to both title and authority. Of course, it may be that, once proper information is made available by the claimants, the issues as to title and as to Leigh Day’s authority may fall away.

I make one final, wider point. During the course of his submissions, Mr Hermer indicated that the court would be most unlikely to find that the application was invalid, such that the claims therefore stood struck out, in circumstances where this potentially vast claim would then be lost for good as a result of what might be called technicalities. It is certainly right to say that, in all kinds of civil litigation, courts have shown themselves repeatedly unwilling to consign large claims into a ‘black hole’ for procedural or technical reasons: see Linden Gardens Trust Ltd v Lenesta Sludge Disposal Ltd [1994] 1 AC 85 as an example of judicial creativity in this area.

But on the other hand, it seems to me that there has been a certain slackness on the claimants’ side, both in respect of title and authority, which has made the defendant’s stance rather more explicable than would otherwise be the case. These matters need to be properly resolved, and sooner rather than later. In particular, the repeated references by the claimants’ representatives to ‘the Bodo Community’, as if they were a claimant, are extremely unhelpful (paragraph 7 of Mr Leader’s fourth statement being a case in point). The use of the name of a deleted claimant is of no assistance to anyone in understanding the basis on which the named claimants (or any substituted claimants) pursue these proceedings.

THE APPLICATION TO LIFT THE STAY: THE TEST TO BE APPLIED

Introduction

Although, for the reasons noted above, the validity or otherwise of the application to lift the stay is an argument that must be dealt with on a separate occasion, it seems to me sensible to endeavour to resolve as many of the other issues between the parties as is possible at this stage. With that in mind, Mr Hermer went on to make a full application to lift the stay, and Mr Webb opposed that application and outlined his own application to strike out the proceedings. Since, in respect of some of the points of principle between the parties, I have reached a firm conclusion as to the answer, it is helpful to set those out here, even if, for the reasons that I have explained, the actual hearing of the application to lift the stay, and thus the ultimate resolution of the issues, must remain to be resolved on another occasion.

The first and most important issue of principle to be decided is the legal test that the court should apply when considering the application to lift the stay. As with so many things, the parties were fundamentally at odds over this.

The Claimants’ Submissions

Mr Hermer contended that “the starting point is the fundamental rule that an individual who is not under a disability, bankrupt or a vexatious litigant, is entitled to untrammelled access to a court of first instance in respect of a bona fide claim based on a properly pleaded cause of action”: see Abraham v Thompson [1997] 4 All ER 363, 374 per Potter LJ. He went on to say that, in circumstances such as this, a stay should only be refused on grounds analogous to those in CPR 3.4(2), namely that there are no reasonable grounds for continuing the claim, or that continuance is an abuse of the court’s process. Alternatively, Mr Hermer said that the stay could be refused on grounds similar to that in CPR 24.2(a)(i) namely that the claimant has no real prospect of succeeding on the claim.

He developed those submissions in his helpful oral argument to argue that:

The Defendant’s Submissions

On behalf of the defendant, Mr Webb’s starting point was the observations of Lord Phillips MR in Jameel v Dow Jones & Co Inc [2005] EWCA Civ. 75 when he noted at paragraph 54 that:

“It is no longer the role of the court simply to provide a level playing-field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

In support of this more interventionist approach, Mr Webb referred to two first instance decisions of Eady J in Schellenberg v BBC [2000] EMLR 296 and Smith v ADVFN Plc [2008] EWHC 1797 in which the judge adopted a broad test, defined in the latter case by asking:

“Are there really genuine issues which require to be resolved or is it the case, on the other hand, that this litigation when viewed as a whole, and in its proper context, is such as to bring the administration of justice into disrepute? Is there really any legitimate or tangible advantage to be gained? …I have an obligation to ensure that the court's process is being used compatibly with the overriding objective. The court is today required to be more proactive in such matters, especially when dealing with a number of people who cannot afford legal advice to protect their best interests.”

In his oral submissions, Mr Webb stressed that the court should have regard to the overriding objective and case management. He did not accept that the court should approach the application to lift the stay on a restricted or narrow basis, such as would obtain by analogy with r.3.4 or r.24.2.

Analysis and Conclusions

In my view, the right approach is that set out below.

The starting point is that the stay should be lifted if that is in accordance with the overriding objective (CPR 1.1) and if it is in accordance with the requirements of justice (Jameel). The issue as to whether that would be an appropriate and proportionate use of the court’s resources automatically falls for consideration under r.1.1. The burden of satisfying this test is on the party who wishes to lift the stay.

It is not appropriate to tilt the playing field or ‘load’ the test to be applied in any particular way (for example, by identifying presumptions or making repeated references to the need for ‘exceptional circumstances’ to be shown in order to prevent the stay being lifted). Each case will turn on its own facts.

It may not always be appropriate for an application to lift a stay to be determined by a direct analogy with r.3.4 or r.24.2. There may, for example, be cases which fall short of being an abuse of process or having no reasonable ground for continuance but which, in all the circumstances, might still lead a court to conclude that, when applying the test outlined in paragraph 48 above, the stay should be refused.

That said, a court could not sensibly apply the test in paragraph 48 above without some regard to those rules of the CPR. But for the stay, the action would still be ongoing, so questions of abuse of process or the absence of reasonable grounds for continuance will, at the very least, provide helpful guidelines for the proper exercise of the court’s discretion in deciding whether or not to lift the stay.

THE ARGUMENTS OF PRINCIPLE IN RESPECT OF OBSTRUCTION/ABUSE OF PROCESS

The Importance of the Issue

It may also be helpful if I address in principle another of the issues between the parties, concerned with the admissibility and relevance of the evidence concerning the alleged obstructions put in the way of the remedial scheme. The defendant wishes to rely on this evidence in support of a case that the stay should not be lifted. The claimants said that the evidence was inadmissible and/or irrelevant and/or incapable of being properly assessed, with the effect that this aspect of the dispute could or should never be determined by the court.

I address this issue of principle because I regard it as important. If the defendant fails to show that the application to set aside was a nullity, then on the material currently before me, I consider that the only basis on which the court would not then lift the stay would be if it concluded that the obstruction case amounted to an abuse of the process and/or made it very unlikely that the claim for an injunction, or damages in lieu, could ever succeed. The other matters raised by the defendant (addressed in Section 6 below) may be capable of being the subject of a separate strike-out (although I am doubtful even about that), but in my view those matters could not in principle prevent the stay from being lifted. That is why the obstruction argument is so significant: it appears to be the only possible ground on which, if the application to lift the stay is not a nullity, the court might still refuse that application.

There is a separate reason why the alleged obstruction may be relevant to the application to lift the stay and/or the wider issues in these proceedings. As already noted, this is a claim for a mandatory injunction requiring the defendant to carry out the remedial scheme. At present, on the face of the pleadings, the damages claim is only made in lieu of the injunction (i.e. it is only relevant if the injunction is not granted). The events of the last two years, whoever ultimately is responsible for them, might support an argument that the court could not order the mandatory injunction sought, either because it could not police such an injunction effectively, or because of considerations relating to the granting of equitable relief in these circumstances.

As I understood his oral submissions, Mr Hermer accepted that there was a connection between the alleged obstruction and the injunction claim, but he played it down, largely because of the existence of the alternative damages claim. But that claim too might be affected by the allegations relating to obstruction. And, although it is an argument for another day, Mr Hermer’s submission also raised an interesting question as to whether any damages could be recoverable in law, in lieu of an injunction that could or would never be granted by the court.

On any view, therefore, the allegations relating to obstruction might be of major significance to the application to lift the stay and/or the outcome of the clean-up claim.

Admissibility/Relevance

On behalf of the claimants, Mr Hermer submitted that, when the court comes to consider the application to lift the stay, it should have no or very little regard to the events since the stay was imposed. He argued that, since all those events were covered by the mediation process, it would be wrong in principle not to lift the stay merely because of the claimants’ conduct in the mediation. Mr Hermer quite accepted that such conduct might be reflected in costs, but said that it would be erroneous in principle for that conduct to reflect on the claimants substantive rights. In effect, he said that the evidence was inadmissible and/or irrelevant.

As a matter of generality, I can see the force of that submission. In an ordinary case, it would be unusual for a court to prevent a claimant who had acted badly in a mediation from pursuing his underlying claim as a result, which claim had been stayed to allow that mediation to take place. The two things are (and should usually be kept) separate. Moreover, very often, the court will have very little idea of what happened in the mediation process because it will be covered by the ‘without prejudice’ tag.

But I consider that, in the present case, it would be wrong and artificial for the court to consider the application to lift the stay, where the application is only being made because the remediation scheme has not progressed, without considering why that scheme has not progressed. It would be unjust to rule as inadmissible or irrelevant the defendant’s case that this situation is the responsibility of the claimants or those they represent. Putting the argument another way, it would be wrong for the claimants to obtain the lifting of the stay by relying on their own misconduct (if that is what it is), in preventing the remedial works from going ahead.

Accordingly I conclude that, as a matter of principle, the evidence as to obstruction is relevant to and admissible on the application to lift the stay.

The Extent of Any Factual Issue

As part of his submissions on this point, Mr Hermer was quick – sometimes too quick – to suggest that the defendant’s case as to obstruction was hotly contested and that, even if the evidence was admissible or relevant, the court would not be able to reach any conclusions on the issue in any event. In my view, that significantly over-states the position. Whilst the outcome of the obstruction argument is for a future hearing, I consider that it is incorrect in principle to say that a court could not reach a proper conclusion on the evidence currently before it. There are a number of reasons for that.

First, the events in 2015 set out in paragraph 14 above are all taken from contemporaneous documents, many produced by or on behalf of the claimants themselves. They cannot therefore be contested. The same will be true of any other relevant events, relied on by the claimants or the defendant, which can be taken directly from the (extensive) contemporaneous documents. Mr Hermer is therefore not right to say that the court cannot decide the allegations on the basis of the evidence that has been provided. This is a very different case from the allegations of fraudulent exaggeration in Alpha Rocks Solicitors v Alade [2015] EWCA Civ. 685, [2015] 1WLR 4534, which self-evidently required oral evidence before they could be determined.

On that issue, Mr Hermer referred to the statement of Dr Holtzmann, which he described as ‘a counter-narrative’. At the appropriate hearing, the claimants can of course rely on that statement, which contains some powerful evidence. At present, however, I do not think it amounts to ‘a counter-narrative’; for one thing, Dr Holtzmann was only in post for a few months, and was apparently sacked by the BMI for not being up to the job.

Secondly, Mr Hermer said that there was a difference between the parties as to the explanations for the claimants’ actions. That is true and may be an important factor in the court’s deliberations. But the court can weigh up those matters in the normal way. Moreover, as I pointed out during argument, physical violence can never be condoned by the courts, whatever the explanation.

Thirdly, many of the claimants’ points conflate the defendant with the BMI. That may or may not be correct. For example, it appears that further problems arose in early 2016, which are said to be due to the appointment of at least one non-local contractor to carry out the works. Dr Holtzmann is critical of what he says was the defendant’s lack of sensitivity in respect of the choice of contractors.

The court will need to weigh up that point carefully. On one construction of the MoU (paragraph 12 above), both the BMI and the defendant had a role in the appointment of contractors. The court will therefore need to consider the position of the BMI, and its many local stakeholders, in connection with the appointment of and liaison with contractors. I note that, in the minutes of the plenary meeting of the BMI on 10 June 2016, it was the BMI who reminded the meeting that they had always stated that “clean-up would be done by international contractors, with proven track record”.

Fourthly, the fact of the court proceedings in Nigeria, and the attempts to injunct the clean-up works, are again a matter of record and cannot be gainsaid. The claimants sought to play this down, submitting that the actions of a few of those represented by the claimants should not be used to punish the rest. That is of course a perfectly valid submission, but it will have to be tested in the light of the fact that one of those injunctions was sought by King John Berebon, the successor to the first claimant, and the person whom the claimants seek, in the separate substitution application, to replace in these proceedings as the first claimant. Again, the explanation for how and why King John acted in this way will need to be considered carefully by the court: at present, it is suggested that he issued these proceedings at a time when there was political in-fighting, and his own succession had not been assured.

The issue of proceedings in Nigeria seeking to prevent these remediation works remains an ongoing issue. Mr Meltzer’s twelfth witness statement deals with two recent sets of proceedings, commenced respectively in April and May 2017, whereby individuals claiming to represent the same people as the claimants in these proceedings are seeking to restrain the carrying out of the remedial works. At least one of these proceedings appears to arise out of the political opposition to King John Berebon.

Mr Hermer sought to argue that, because no injunctions had actually been granted, the fact of these and other Nigerian proceedings was a relatively small factor to be weighed in the balance. That may or may not be right, but it will again be a matter for the court to decide on considering all the evidence.

Accordingly, I consider that, as a matter of principle, there is proper evidence before the court to allow the obstruction issues to be fairly decided. It is incorrect to say that the court could not reach proper conclusions on those issues, and take them into account when deciding whether or not to lift the stay.

THE APPLICATION TO STRIKE OUT

The Parties’ Submissions

It was the defendant’s case that, whatever happens in respect of the application to lift the stay, the proceedings ought to be struck out. A number of matters were raised. The defendant’s principal point was the question of obstruction to the remediation process, which I have already addressed, in the context of the application to lift the stay, in Section 5 above. In addition, other points were taken in Mr Meltzer’s twelfth statement as to the expense/complexity of the claim, and the justiciability of the claim, it being said that the claim may violate the doctrine of the foreign act of state or might require the court to reach a conclusion as to title to foreign land.

On these other points, Mr Hermer said that the extensive or expensive nature of the litigation could not be a proper ground for striking out and that the justiciability arguments could be preliminary issues but not grounds to strike out.

Expense/Complex Nature of the Litigation

I was unclear as to the extent to which, on behalf of the defendant, Mr Webb was submitting that these proceedings were an abuse of the process of the court because they were so extensive and/or expensive. To the extent that he was, I reject that submission. This litigation is no more complex than the similar litigation successfully managed and tried by Stuart-Smith J which resulted in his lengthy judgment in Pedro Emiro Florez Arroyo and others v Equion Energia Limited (formerly known as BP Exploration Company (Colombia) Limited) [2016] EWHC 1699 (TCC).

I certainly share the concerns about the potential expense of this litigation, but I am positive that this can be dealt with by the adoption of stringent costs management powers. I made plain to the parties during the hearing that a total sum of £280,000 in respect of this one day application was excessive. Proper cost management orders will need to be put in place if the action is to continue and although those can only deal with the costs to be incurred in the future, the approved budget for those costs can of course reflect the costs which have already been incurred (see CIP Properties Ltd v Gallifird Try Infrastructure Ltd [2015] EWHC 481 (TCC)).

Legal Issues

It may be that preliminary issues can be held in relation to the issues relating to foreign act of state and title. Those are not grounds for striking out the claim. Moreover, since the title point should be resolved one way or another (at least on an interlocutory basis) on the application in respect of the validity of the application to lift the stay (Section 3 above) it may be that, ultimately, there is nothing left in that point. To the extent that there is a jurisdiction issue as to the granting of an injunction relating to foreign land, that may be dealt with as part of the arguments noted in Section 5 above.

THE WAY FORWARD

Hearing to Resolve Validity of Application to Lift Stay

For the reasons set out in Section 3 above, I have not been able to resolve the issue as to the validity of the application to lift the stay and the consequences if the court concluded that the application was a nullity. I ought to give the defendant 21 days to consider the new material from the claimant. Thereafter, there should be a hearing to deal with that issue, and the associated application for substitution. It is sensible to get the parties to agree a timetable for the exchange of skeleton arguments (I am assuming that no further evidence will be required) and a date for the hearing convenient to counsel. It is unlikely that hearing will take place before the long vacation. That would mean that any hearing could not be heard until early October 2017.

Hearing to Lift Stay and Conditions to be Attached (if any)

If the court concluded that the application to lift the stay was invalid, then it may be that the action will come to an end at that point. Assuming that the application is not invalid, then there will have to be a further hearing as to whether or not the stay should be lifted. As I have explained in Section 5 above, I consider that it would be then that the question of obstruction/abuse will arise, centre stage, to be determined on the basis of the evidence currently before the court, together with any further material covering the period between now and the hearing.

Assuming that the obstruction argument fails, the stay may then be lifted. If that happens, for the reasons that I have given, costs management orders will be required.

I am conscious that, to the extent that by their application of October 2016, the claimants wanted to keep these proceedings alive for at least a year, they will have achieved that, if only by default. But three consequences arise.

First, the fact that these proceedings will continue at least until the autumn of 2017 does not affect in any way both sides’ obligations in respect of the BMI process and the need to ensure that the remediation scheme is put in hand sooner rather than later. Nothing that may or may not happen in these proceedings over the next few months can affect that primary obligation on each side.

Secondly, I consider that the hearing on 16 June was unnecessary. I regard the defendant’s letter of 25 November 2016 (paragraph 20 above) and the follow up on 29 March, to set out, at least in general terms, a reasonable way forward. I consider that the undertakings sought were also reasonable or, at the very least, capable of sensible adjustment and modification. For example, although Leigh Day baulked at an undertaking in respect of unfettered access, that is what is promised at clause 5 of the MoU (see paragraph 12 above). I expect better in the coming months.

Thirdly, I should repeat what I said at the hearing. Over the next few months or even years, these proceedings cannot be utilised by the claimants as some sort of “gun in the cupboard”, to be brought out as and when it suits them, to be brandished at the defendant’s head. From all that I have seen, the BMI process remains the best way (perhaps the only way) in which the remediation scheme can be achieved. For their own sake, the claimants therefore need to cooperate with the BMI in every way. The consequences of not doing so are stark. As Leigh Day themselves pointed out in their letter of 26 October 2015 (paragraph 14(d) above), the ultimate sanction is that the land is not cleaned up and these proceedings are no longer extant. On this point, I can do no better than to quote Leigh Day, when they said “the option [of these proceedings] will not be available to you [the claimants] if you do not allow the clean-up to start”. I respectfully agree with that warning.