Jalla & Ors v Royal Dutch Shell Plc & Ors

The First and Second Claimants bring this action on their own behalf and on behalf of a very large number of individuals (in excess of 27,500) who live by or in the hinterland of a stretch of the coast of Nigeria that spans two States, Bayelsa State and Delta State. I shall refer to all those individuals who claim by the action generically as “the Claimants”. In addition, the claim is said to be brought on behalf of 457 villages and communities that are alleged to have been affected by the oil spill that is the subject of the action. I shall refer to them as “the 457 Communities”.

About 120 kms off the coastline of Bayelsa State and Delta State lies the Bonga oil field, the infrastructure and facilities for which include a FPSO [“Floating Production Storage and Offloading”] facility which is linked to a SPM [“Single Point Mooring”] buoy by three submersible flexible flowlines. It is common ground that on 20

In general terms, the Claimants allege that responsibility for the December 2011 Spill lies with companies forming part of the Shell group. The action is resisted on numerous grounds, including that the Defendants have not accepted and do not accept that any oil from the December 2011 Spill reached the Claimants’ coastline or caused the damage that the Claimants allege.

I shall have to outline the background and procedural history in a little detail later. By way of preliminary introduction, the Claimants issued proceedings on 12 December

The Claimants amended the Claim Form on 4 April 2018. They relied on the provisions of CPR r 17.1 which, if applicable, permits an amendment of a statement of case without the permission of the Court before it has been served on the opposite party. The name of the second Defendant was amended by the addition of the words “Trading and Shipping Company” so that the second Defendant was now named as Shell International Trading and Shipping Company Limited [“STASCO”]. STASCO is domiciled in England and is another company within the Shell group of companies. At one point Mr Dunning QC for the Claimants submitted that there was no practical difference between SIL and STASCO and that they were “closely related” members of the Shell group. On being pressed, he backed away from that submission, which was unsubstantiated, and submitted instead that they were part of the same economic entity, namely the Shell group of companies. On the evidence it appears, and I find for the purposes of the present applications, that SIL and STASCO were separate legal entities within the overall Shell group and that they have separate functions: SIL provides legal and HR services to other companies in the Shell group but has no operations in the shipping industry, whether in the management of ships or otherwise; STASCO is, as its name suggests, a company that has some involvement with shipping operations (the extent of which is controversial). STASCO is now alleged to be directly responsible for the safe operation of the MV Northia and to be vicariously liable for the torts of its crew.

The original Claim Form, the Amended Claim Form and Particulars of Claim were served on RDS and STASCO on 10 April 2018. This was the first communication between the Claimants and STASCO. The Amended Claim Form and Particulars of Claim asserted claims in relation to the December 2011 Spill and the July 2012 Spill.

On 11 April 2018 the Claimants issued an application to serve SNEPCO out of the jurisdiction. The application was made by the Claimants with the intention that it should be decided ex parte. Fraser J first ordered that there should be a hearing at which the First Defendant should be heard, and then made the order for service out after a hearing attended by the Claimants and the First and Second Defendants on 9 July 2018. SNEPCO was not served with the application and was not represented at the hearing.

RDS, STASCO and SNEPCO each issued applications on 28 September 2018 challenging jurisdiction [“the Jurisdiction Application”] and applying for reverse summary judgment. In the absence of RDS, the Defendants now apply for:

For reasons which I will touch on later, the Defendants’ Jurisdiction Applications were ultimately listed to be heard in October 2019.

On 3 April 2019 the Claimants issued an application for permission to amend the Particulars of Claim. The amendments for which permission is sought are extensive and require detailed consideration later. At this stage it is sufficient to note two points. First, the draft Amended Particulars of Claim continued to advance claims in relation to the December 2011 Spill and the July 2012 Spill; but, by the time of the hearing of the Claimants’ applications to amend, the Court was told that “the Claimants no longer pursue their allegations in respect of the July 2012 spill.” It is

The Claimants issued two notices of application on 7 June 2019:

The Claimants’ applications were listed for separate hearing on 19 September 2019 pursuant to the order of O’Farrell J who (correctly, in my respectful opinion) took the view on the papers that the issues they raised were discrete and should (at least arguably) be determined before the hearing of the Defendants’ Jurisdiction Application.

At the September hearing a consensual resolution of the Brookes Bell Application was reached. The Defendants explained that, for the purpose of the Jurisdiction Application, the Court is not required to (and cannot) resolve the question whether the Bonga Oil reached the shoreline; and that the issue of what the crew did or did not do on board the vessel is irrelevant to the question whether STASCO was directly or vicariously liable for the December 2011 Spill. On the basis of these explanations, the Claimants’ asserted need to rely upon the two reports for the hearing of the Jurisdiction Application fell away. It was therefore agreed that permission was not to be granted but that the reports should be available at the hearing of the Jurisdiction Application in case the Defendants’ explanation proved to be wrong and the Defendants’ arguments on the Jurisdiction Application rendered one or both of the reports relevant for that hearing.

The hearing of the STASCO Application gave rise to questions on which the Court required further clarification; and it became apparent that it was not critical to resolve the STASCO Application before hearing the Defendants’ Jurisdiction Application. As a result, the STASCO Application was adjourned part heard to the date of hearing of the Jurisdiction Application in October.

The circumstances surrounding the issuing of the STASCO Application are unusual, if not unique. At present, subject to the possibility that the amendment under CPR r.

is either wholly or in part a nullity, STASCO is joined and is the Second Defendant. If a Defendant considered the joinder of STASCO to be objectionable or irregular for any reason, it was open to it to object and, if it thought fit, to issue an application to set aside the joinder. A valid reason for an objection or application would be that the joinder of STASCO had occurred outside the limitation period and without the requisite permission of the Court. Equally, it would be open to the Defendants to decide not to take objection (for any number of reasons) even if they thought they had a potentially good reason for taking one. As a matter of fact, they have not done so at any stage. The Court does not know why they have not done so; but it is reasonable to note that the Defendants have had representation of the highest repute and competence throughout and have raised multiple challenges to the Claimants’ claims, exemplified by the Jurisdiction Application.

Why then has the STASCO application been issued, given that STASCO is joined and the Defendant had not taken any point on the joinder? The only factual explanation has been provided by the 4^th witness statement of the Claimants’ solicitor, Mr Ekhorutomwen, and was reiterated by Mr Dunning QC:

“We don't accept that the claims were time-barred or were all time-barred but out of an abundance of caution, we thought it was right that this matter should be brought before the court, in order to regularise the position. But the point I stress is it's not because the defendants said that the pleading was invalid or ineffective when it replaced STASCO in place of SIL.”

Later he reaffirmed that the Defendants did not complain about the joinder of STASCO until the Claimants issued the STASCO Application, whereupon the Defendants have opposed the application with all means and arguments at their disposal.

There is a second peculiarity about the bringing of the STASCO Application. The Application is brought pursuant to CPR 17.4 and/or CPR 19.5, which apply where a party wishes to amend a statement of case or to substitute a party after the expiry of the limitation period. But the Claimants do not accept that the limitation period has expired. Hence their case is that the STASCO Application is inappropriate and unnecessary. The STASCO Application, if it is appropriate at all, therefore requires the Court either to assume or to determine that the Limitation Period has expired in some material respect that makes the provisions of CPR 17.4.(3) and/or CPR 19.5(3)(a) relevant and applicable, or to adopt a solution which is contingent upon later resolution of limitation issues.

On 3 October 2019, between the September and October hearing dates, the Claimants issued a further application, which was for a declaration that the Defendants are estopped from denying that the claims against STASCO set out in the amended Particulars of Claim are within the scope of the Claim Form as originally issued or, alternatively, for permission to amend the Claim Form. The effect of this (re)amendment of the Claim Form would be to add reference to the MV Northia loading at the SPM (which is not mentioned in the original or amended Claim Forms) “for which [STASCO] was responsible” at the time of the December 2011 Spill and to add

On 28 October 2019, over two weeks after the conclusion of the hearing, the Claimants issued a further application, which was for permission to adduce new evidence contained in three witness statements. The new evidence was intended to go to the date upon which actionable damage was suffered by Claimants who lived at a distance from the coastal shoreline. Unsurprisingly, the Defendant objected to the admission of this evidence at this stage in the proceedings.

The question of limitation hangs over all the applications before the Court and is a nettle to be grasped at the outset. In doing so, I remind myself (as I was frequently reminded by Claimants during the hearing) that it is not open to the Court to perform a mini-trial of disputed facts where those facts can only be resolved properly and fairly after hearing the evidence that underpins the disputes between the parties. That said, many of the relevant facts are uncontroversial or based upon documents that do not require explanation by additional evidence, or both. It is therefore convenient and relevant to outline the basic facts of the December 2011 Spill, the steps that were taken by the Claimants before issuing proceedings, and the facts upon the basis of which estoppel by convention and deliberate concealment are submitted to be brought into play.

Because the Court is precluded from conducting a trial of controversial and uncertain facts, it is often necessary to take decisions on applications to amend when it is not clear whether the proposed amendment should be held to be statute barred or not. The normal approach of the Court in such cases is set out in Chandra v Brooke North [2013] EWCA Civ 1559 at [66]-[69]. Jackson LJ, with whom the other members of the court agreed, said:

“66.

If a claimant seeks to raise a new claim by amendment and the defendant objects that it is barred by limitation, the court must decide how to proceed. There are two options. First the court could deal with the matter as a conventional amendment application. Alternatively, the court could direct that the question of limitation be determined as a preliminary issue.

67.

If, as is usually the case, the court adopts the first option, it will not descend into factual issues which are seriously in dispute. The court will limit itself to considering whether the defendant has a “reasonably arguable case on limitation”: see WDA at 1425 H. If so, the court will refuse the claimant's application. If not, the court will have a discretion to allow the amendment if it sees fit in all the circumstances.

68.

If the court refuses permission to amend, the claimant's remedy will be to issue separate proceedings in respect of the new claim. The defendant can plead its limitation defence. The limitation issue will then be determined at trial and the defendant will not be prejudiced by the operation of relation back under section 35 (1)of the 1980 Act.

69.

This leads on to a separate and important point. If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two actions will probably be consolidated and the question of limitation can be determined at trial.”

The reasoning underlying these principles applies equally where a Claimant wishes to amend not simply to add a new claim but to add or substitute a new party.

An alternative approach, which includes elements of both the Chandra options was adopted by the trial judge and endorsed by the Court of Appeal in Blue Tropic v Chkhartishvili [2016] EWCA Civ 1259. The claimant made an application to amend its claim shortly before trial. By that time (as the judge subsequently found at trial) the foreign limitation period had expired. Thus, if the amendment sought to add a new claim, the Court only had jurisdiction to allow it if it arose out of the same or substantially the same facts, pursuant to CPR 17.4(2). However, the Court did not determine whether the amendment was time barred on the Claimants’ application to amend. The approach it took instead was summarised with approval by Henderson LJ at [26]:

“After some further debate, the judge said that he would grant permission to amend, but without prejudice to any argument that might be raised at trial that the amendment should be disallowed because it was time-barred. Both parties were content for the judge to proceed in this way, and neither counsel requested the judge to give a formal ruling when he offered them the opportunity to do so. In my judgment this was clearly a sensible way to proceed, because the question whether or not the claim was time-barred could not be determined until the evidence had been heard at trial, and neither side was suggesting that the trial would have to be adjourned if permission to amend were granted on that provisional basis.”

The rationale for this approach was that it could not be determined until the evidence had been heard at trial on whether or not the claim was time barred. A final decision that an amendment is time barred depended upon determination of factual issues, namely whether or not (a) a relevant limitation period had expired before the application is decided, (b) the amendment raised a new claim, and (c) if the amendment raised a new claim, it arose from the same or substantially the same facts. Only if those factual questions were answered in favour of the applicant would the court have a discretion to allow the amendment.

I make two observations about these contrasting approaches at this stage. First, the Blue Tropic approach should not be adopted unless there are material issues that cannot be decided before trial: it should not be used simply as means of putting off the day of decision. Where there are issues that can be determined without resort to a trial, they should be. Second, neither Chandra nor Blue Tropic (nor any other authority of which I am aware) addresses the specific questions which may arise in the context of a representative action constituted as the present one. The Chandra approach is ideally suited to a claim by an individual claimant against an individual defendant where refusing the application and leaving the claimant to protect himself by issuing separate proceedings is straightforward. Arguably different considerations apply in a case such as the present which is the vehicle for 27,000 individual claims each of which is dependent upon proof of actionable damage specific to that claim. At least the theoretical possibility exists, therefore, of time running from different times for different claims and claimants. No submissions were made on this point, and no one appears to have given thought to the appropriateness of using a representative action when, at least arguably, the Claimants cannot be said to have the same interest: see, for example, the discussion in Lloyd v Google LLC [2019] EWCA Civ 1599 at [73]-[81]. The requirement of a common interest as a necessary prerequisite appears to be in accordance with Nigerian Law as explained by the Defendants’ expert who says that “the essential condition for sustaining a representative action is that the persons who are to be represented have the same interest as the plaintiff in one and the same cause or matter”.

In their written submissions for the September hearing, the Claimants accepted that the Defendants’ position on limitation (namely that the limitation period had expired by 4 April 2018) was arguable. This concession was made before the Claimants had formulated their new submission (to which I refer below) that some claimants may not have suffered actionable damage until after 4 April 2012. It is therefore not clear to what extent the Claimants maintain their concession and so it is necessary for the Court to review the position. As will become apparent, I consider that the concession was properly made, though the enormous number of claimants gives rise to some complexity.

The brief chronology set out above shows that these proceedings were issued just under 6 years after the December 2011 Oil Spill. It is common ground that the law that applies to the Claimants’ claims in tort (including the law of limitation) is Nigerian Law, which is assumed to be the same as English law unless proved to be different. The Claimants contend that the applicable primary limitation period for the claims in tort that they wish to bring is six years. The Defendants contend for a primary limitation period of five years. Each side relies upon expert evidence to support their position. This is not a dispute that the Court can resolve in the context of the present applications. I therefore assume for present purposes, in favour of the Claimants, that the primary period is six years. The Court must, however, bear in mind that this assumption may be wrong and that the primary period may later be proved to be five years. I also assume that the primary limitation period for a claim in

The evidence of the Claimants’ solicitor makes plain the obvious truth that proceedings were issued on 13 December 2017 because of the perceived risk that the primary limitation period would expire on 20 December 2017, six years after the December 2011 Spill, or very soon thereafter. In one of his witness statements Mr Ekhorutomwen asserts that the limitation period is 6 years from 20 December 2011; in another he states that he had the impending limitation period in mind in and from about August 2017. If this approach be correct, then the primary limitation period for some or all of the claims arising out of the December 2011 Spill would have expired shortly after the issue of the original Claim Form in these proceedings and before its amendment and the service of the original Particulars of Claim in April 2018.

Before the hearing of these applications, the Claimants advanced two reasons why time should not run from about 20 December 2011. In summary, those reasons were that:

However, at the hearing on 19 September 2019 Mr Dunning advanced the new submission that at least some of the Claimants may have suffered no actionable damage until after 4 April 2012, so that time would not have started running either in nuisance or in negligence until then, with the result that both the amendment of the Claim Form on 4 April 2018 and the service of the original Particulars of Claim on 10

Despite the obvious relevance to this submission of the date from which time ran, the Claimants do not appear to have given any thought to whether there was or should be evidence to back it up. As I set out below, this has led to a piecemeal and partial approach to the basis of the Claimants’ submission, culminating in the application made nearly three weeks after the hearing that the Court should admit three witness statements going to the date of damage. It is something of an understatement to say that this is an unsatisfactory way of conducting significant litigation, not least because it risks significant unfairness to the Defendant.

The Claimants’ case is that the MV Northia moored at the SPM on 19 December 2011 in order to load just under 1 million barrels of crude oil from the Bonga FPSO. Loading operations commenced that evening. Some time before 3 a.m. on 20 December, one of the flexible flowlines between the FPSO and the SPM ruptured and the spill started. During the loading operation the ship/shore volume differential was being determined on an hourly basis on board both the Bonga FPSO and the MV Northia, which the Claimants say accords with best practice. At about 3 a.m. and hourly thereafter an inexplicable difference was recorded between the amount transferred from the FPSO and the amount received by the MV Northia. The Claimants allege that this should have led to loading being stopped immediately as it was indicative of leakage between the FPSO and the vessel; but it was not. At about 7 a.m. an oil sheen was seen on the water by the crew of the vessel; but it was not until about 8 a.m. that the FPSO’s loading master directed that loading should stop; and loading did not cease until 8.24 a.m. It is the essence of the complaint and case that the Claimants now wish to advance that legal responsibility for failure to prevent the continued spillage after 3 a.m. rests jointly with those operating the FPSO and the master and crew of the MV Northia and those responsible for their actions (Footnote: ¹). There is no doubt that SNEPCO was the operator of the FPSO. The question of STASCO’s responsibility for the master and crew is much more contentious, as appears below.

I have outlined the nature of the damage alleged by the Claimants at [1] above and set out the pleaded heads of claim at [55] below. In the light of the Claimants’ new submission that actionable damage may not have been suffered by some claimants before 4 April 2012, it is necessary to review the available material, bearing in mind that it is not appropriate or possible to conduct a mini-trial of the issue either generally or specifically in relation to individual claimants. There are, in my view, three findings that could in theory be open to the Court without conducting a minitrial and which may affect the determination of the various applications. The first would be a conclusion that it was clear that actionable damage had not occurred more than six years before a particular step was taken in the litigation. The second would be that it was arguable that actionable damage had occurred more than six years before a particular step was taken. The third would be that it is clear that actionable damage had occurred more than six years before a particular step was taken. The clear lines of these three possibilities are blurred by the prospect that different Claimants suffered damage at different times.

At the conclusion of the hearing, the relevant evidence about the timing of actionable damage identified by the Court or the Claimants may be summarised as follows:

The descriptions in the report indicate that some soil samples are likely

It is in this context that the Claimants’ post-hearing application to adduce further evidence must be considered. Before considering the substance of the evidence that the Claimants now wish to adduce, two preliminary points arise:

There are three witness statements that the Claimants wish to adduce:

This brief summary of the evidence demonstrates how unfair it would be to admit it at this stage. If it was to be admitted it could and should have been placed before the Court at a time which enabled the Defendants to deal with it for the purposes of these amendment and jurisdiction applications. To admit it now would require a further adjournment to enable the Defendants to respond to the evidence and make submissions about it and any evidence they might be able to muster in response. Given the nature of the Claimants’ evidence, I would anticipate a substantial response including both lay and expert evidence. There is, in my judgment, no justification for yet further delay in the absence of compelling reason, which has not been shown.

I am also influenced by the nature of the evidence. If the Claimants claimed damages for personal injuries, it could have been relevant to identify the dates on which the claimants sustained those personal injuries. But the Claimants have chosen not to claim damages for personal injuries. In those circumstances, to admit Dr Enakemuabdullahi’s evidence of his treating patterns as proxies for the types of damage for which claims have been made in various (unspecific) areas, would be wrong in principle without other evidence providing some link to the claims that have been made. The evidence of each witness is unspecific as to location and therefore limited in its direct relevance even assuming that the pollution of which they speak derived from the December 2011 Spill.

For these reasons, the Claimants’ 28 October 2019 application to adduce the further evidence is refused. Having read the witness evidence de bene esse, I exclude it from further consideration.

The solicitor acting for the Claimants, Mr Ekhorutomwen, has been the same throughout though he has moved firms during the relevant period.

The solicitors’ first correspondence was by letters dated 8 August 2012 addressed in identical terms to RDS and to Shell Development Company of Nigeria Limited. The letters were written on behalf of members of the Bonga Community and advanced a claim for damages as a result of the incident “which occurred on 20 December 2011 when crude oil spilled from your pipelines into our client’s territorial water.” It was alleged that the crude oil had also permeated the clients’ soil “thereby rendering it impossible for [the clients] to farm and fish within the areas affected by the oil spills”. The basis of the claim was said to be that RDS and SNEPCO jointly operated a crude oil license block and that “during the transfer of crude oil from your platform to a waiting oil tanker, there was a leakage in your export hose as a result of which approximately 40,0000 barrels of crude oil (roughly 1.68 million gallons) was discharged into the claimants’ environment.” The letters alleged that, due to RDS and SNEPCO’s inability swiftly to contain the leakage, it continued unabated and spread beyond the Defendants’ immediate vicinity to the Claimants’ shoreline causing extensive damage to the existing wildlife. The letters noted that RDS and SNEPCO contested the fact that the crude oil (from the spill) reached the claimants’ shoreline but asserted that it had in fact done so and that a report from the Nigerian National Oil Spillage and Response Agency [“NOSDRA”] supported the Claimants’ position. The letters alleged that RDS and Shell Development Company of Nigeria Limited were negligent and that their negligence had caused loss of income and destruction of the environment. The letters identified three groups of claimants: fishermen who could

SNEPCO replied on 17 September 2012 saying that the letter to RDS had been referred to it “as the operator of the OML 118 Production Sharing Contract” and that it was replying in that capacity. It rejected the allegation that Bonga oil had impacted the Claimants and referred to a “Mystery Spill” that is said to have occurred at or about the same time for which the Bonga facility was not responsible.

The Claimants’ solicitors wrote again (separately) to RDS and SNEPCO on 22 October 2012. Referring to the terms of SNEPCO’s letter of 17 September 2012, the solicitors asked for further information about the containment operation and the Mystery Spill and for further information about the impact of the Mystery Spill on the communities it affected. In reply, by a letter dated 7 November 2012 RDS referred the solicitors to SNEPCO and, by a letter dated 12 November 2012, SNEPCO said it had provided “requisite and composite information regarding the Bonga Spill and the management thereof and [has] no further comments to make on the issue” and requested that all further correspondence about the spill be directed to it.

On 20 December 2012 the solicitors wrote to SNEPCO saying that “a comprehensive site visit” had not substantiated the assertions made by SNEPCO in its letter of 17 September 2012 and giving SNEPCO one last opportunity to “set the record straight” in order to avoid long and costly litigation and inviting an indication that SNEPCO was prepared to negotiate settlement. There was no reply to this letter.

There was then a gap of over three years until 12 January 2016, by which time the Claimants’ solicitor had moved firms. On that date the solicitors wrote a joint letter to RDS and SNEPCO. The letter said that the assertion in the letter of 17 September 2012 (which was, as noted above, from SNEPCO and not from RDS) that “you have essentially cleaned-up all the affected areas could not be objectively verified”; and that site visits revealed quite the opposite. The solicitors again invited settlement and, if the recipients were not prepared to mediate, reiterated the questions that had been asked in the solicitors letter of 22 October 2012.

On 29 January 2016 RDS replied, saying that all further correspondence should be directed to SNEPCO as operator of the Bonga facility. There is no record of any separate response from SNEPCO. Nothing further happened until 12 August 2017, over 18 months later, when the solicitors wrote yet again to RDS. On this occasion the Solicitors asked RDS for documents recording “the exact or extent [sic] of your supervisory relationship and control over your Nigerian subsidiary, [SNEPCO]” and “any and all internal reports that you may have directly or indirectly commissioned and continue to hold in respect of the Bonga spills of 20 December 2011 and 15 July

The next communication between the parties was on 16 October 2017 when the solicitors wrote again to RDS with another request for the documents requested on 12

Undaunted, and apparently not heeding the content of SIL’s letter or the earlier letters from RDS, the solicitors wrote again to RDS direct (by its legal department) on 1 November 2017 in apparent response to the SIL letter (which was wrongly described as RDS’ letter) of 27 October 2017. The solicitors asserted that RDS was likely to be named as a party to any claim that the claimants might bring in the United Kingdom concerning the Bonga oil spills and that RDS, “as a responsible company registered and operating in the UK”, was under a duty to make the requested documents available to them.

On 15 November 2017, SIL wrote to the solicitors again, this time by email, informing them that their letter of 1 November to RDS had been copied to SIL. SIL requested that any further correspondence to RDS on the matter should be directed to SIL. SIL said that it would respond to the letter of 1 November “as appropriate in due course”. It concluded that RDS’s rights were reserved and was signed by Ms Nicholls as “Senior Legal Counsel”. Once again, SIL’s response neither stated nor implied any involvement save as legal counsel to RDS.

As promised, SIL wrote again on 5 December 2017. Once again they made clear that they were writing as legal counsel acting for RDS, including by reserving all RDS’s rights. On RDS’s behalf they rejected the request for documentation on multiple grounds including that no information had been provided about the identity of the claimants, that any request should be directed to SNEPCO as operator of the Bonga facility, and that the requirements of CPR part 31.6 were not met. SIL also pointed out that no detail of any cause of action against RDS had been provided and that the complaints were continuing to be made against RDS “in the present circumstances where there are several proceedings on foot in Nigeria”.

There was no further pre-action correspondence. Five points emerge from the correspondence summarised above. First, the correspondence was characterised by long gaps (a) between December 2012 and January 2016 and (b) between January 2016 and August 2017. Second, the attempts to obtain information and documentation were sporadic and not followed up with any degree of competence or urgency. Third, there was no mention of the tanker into which the oil was being loaded after the first letter in 2012, which merely referred to “a waiting tanker” without any suggestion (then or later) that the tanker might have any responsibility for the spill. Fourth, there was nothing in the correspondence to suggest that SIL had any involvement except as legal counsel to RDS. Fifth, the Claimants’ continued writing to RDS must now be seen in the light of their recent discontinuance of all claims brought against RDS in this litigation.

Two other letters were referred to at the hearing as providing information about the Claimants’ state of mind and understanding before issuing proceedings. First, on 14 September 2019 (less than a week before the September hearing) Mr Jalla made a witness statement which disclosed a letter from the solicitors to their clients dated 22 September 2017, which was annotated by Mr Jalla to say that he had received it on 13 October 2017 and which described “a breakthrough”. The features of interest for present purposes are, first, that a whistleblower had provided information that (a) there was a report “commissioned by Shell which confirms that the spill reached shore despite what Shell has been telling you for years”; and (b) “the controller and possible owner of the ship that was loading when the first Spill occurred in 2011 is a Shell company …, the name of that company is Shell International and it is a company registered in the UK”. Second, during the September hearing the Claimants produced a letter from Mr Jalla addressed to the managing director of SNEPCO dated 20 October 2017 in which he asserted that (a) SNEPCO was “in possession of certain reports which you commissioned in respect of the 2011 Spill and that that report [sic] shows that the Spill reached shore despite your insistence that the Spill did not reach shore”, and (b) asserted that the ship that was loading was controlled by a Shell subsidiary identified as SIL. Mr Jalla invited settlement negotiations, failing which he said that the Claimants would have no alternative but to start an action against SNEPCO, SIL and RDS in England.

The Defendants put in evidence to cast doubt on the authenticity of this letter, and referred to another letter apparently sent by Mr Jalla to NOSDRA and dated 18 October 2017. There are a number of peculiarities about that letter, not least that it states that the Claimants (through Mr Jalla and the Claimants’ solicitors) had already issued proceedings in the TCC in London, which seems inexplicable if, as I am told, they had not done so. However, it would be inappropriate for me to try to resolve the doubts surrounding these letters on current information. I therefore approach these applications on the basis that the letters dated 14 September and 20 October 2017 have not been shown to be inauthentic. What may be noted, however, is that the solicitors did not at any stage before issuing proceedings write to SIL suggesting that it had a responsibility for the Spills, either as a result of involvement with the MV Northia or otherwise. Furthermore, even assuming that Mr Jalla sent his letter to SNEPCO, there is no basis for assuming that it reached the controlling mind(s) of SNEPCO; and it was not sent to SIL or RDS (or, for that matter, to STASCO). Finally, even with the information acquired from the whistleblower on or before 22 September 2017, no steps were made to compel early disclosure of such a report by RDS, SIL or anyone else.

The Claims are now brought in negligence and nuisance, other causes of action having been abandoned. The Particulars of Claim at [46] plead a case in private (but not public) nuisance. What may constitute actionable damage in negligence or undue interference with the use or enjoyment of land in nuisance may be acutely fact sensitive in a given case, an exercise which is well beyond the scope of this judgment on the limited information that is now available.

The heads of loss and damage for which the Claimants claim damages are set out at [56]-[64] of the Particulars of Claim as follows:

“Fishing/Fish Trading

56.

There has been a dramatic reduction in various species of fish, especially the ‘Bonga fish’. Fishing, periwinkle picking and shell fish harvesting industries have been devastated, perhaps irreparably. To the extent that any fish or aquatic life has survived, the majority are contaminated by crude oil, toxic and unfit for human consumption. The effect on subsistence and commercial fishing has been devastating.

Farm land

57.

It is averred that the Claimants’ farmland has been directly impacted by permeating oil from the spills and crop yields have diminished due to soil and environmental toxicity.

Drinking water

58.

The oil spills have caused pollution to the environment and contaminated the ground and drinking water forcing the Claimants to find alternative sources of water at significant additional cost disproportionately negatively impacting their modest incomes.

Mangroves

59.

The wood from the mangrove forest which supports the Claimants’ domestic energy needs is now covered in oil and unsuitable for cooking fuel and other domestic tasks due to the odour omitted on burning. The Claimants are therefore having to find and utilise more expensive alternative sources of energy.

60.

Mangrove forest is a natural habitat and ecosystem supporting the large populations of shell-fish and fish. Many hectares of mangrove forest and swamp has been heavily negatively impacted. The Claimants’ incomes are diminished and sources of food destroyed.

61.

It is averred that the damage to the mangrove forests and swamps will have a long term detrimental effect on the Claimants’ economic activities and quality of life.

Shrines

62.

Various traditional shrines and objects of traditional religious veneration have been destroyed by the oil spills which has caused the Claimants great distress, shock, fear and anxiety.

Landowners

63.

The Claimants have suffered diminution in the value of their land as a result of the spills.

Associated industry

64.

Industry associated with fishing and farming has been devastated by the effects of the spill. The significant reduction in fishing activity has reduced demand for services relating to the fishing industry including the sale of fishing paraphernalia, mending of fishing nets and traps, hiring of boats, maintenance of boats, the maintenance and preservation of fish pools and so on. This list does not purport to be an exhaustive list of all those whose businesses and lives have been blighted by the oil spills.”

No attention has yet been paid to potential questions about:

For the purposes of this application, I concentrate upon the time when polluting oil (assumed to have come from the December 2011 Spill) first adversely affected the Claimants, without further analysis or elaboration of the type of adverse effect. I leave the question of continuing nuisance over to [62] below.

The potentially relevant dates for limitation periods are:

On the basis of the information before the Court, which I have summarised briefly above, it is safe to conclude without conducting a mini-trial that if the oil from the December 2011 Spill was responsible for the damage of which the Claimants complain, then oil reached the shoreline within a few days of 24 December 2011. Evidently, some parts of the shoreline included within the claims in this litigation were more remote than others from the Bonga FPSO and so landfall would not all have occurred at the same time. However, it is clear beyond reasonable argument to the contrary that actionable damage as alleged would have been suffered along most if not all of the affected shoreline within weeks rather than months of the December 2011 Spill. Not only is there actual evidence of oil reaching the shoreline at about the end of December 2011, but also no plausible mechanism has been suggested that would lead to the December 2011 Spill getting as close as it did to the shoreline by 24 December 2011 but then (assuming it did) causing such havoc over the allegedly affected shoreline only after some extended delay. This does not mean that all Claimants living and working along the shoreline were affected as soon as oil first hit land; but the substantial quantities of polluting oil alleged by the Claimants strongly support the conclusion that, where oil hit a particular stretch of the shoreline, many if not all Claimants living and working in that area would have suffered one or more of the effects of which they now complain within a short time. Even without conducting a mini-trial, therefore, the Court can be confident that actionable damage sufficient to start time running in negligence and/or nuisance occurred for many Claimants before 4 April 2012. This is supported primarily by the movement of the Bonga oil slick and the location and timing of the FUGRO samples as summarised in the Appendices to the Brookes Bell report and also by the other evidence summarised above.

Because of the almost complete lack of specificity or evidence about the migration of oil and the location of Claimants, it is not clear that all Claimants had suffered actionable damage by 4 April 2012. However, there is no material before the Court to indicate that the Defendants do not have a reasonably arguable case on limitation for the action as a whole, simply based upon the date of the December 2011 Spill, the short time it would have taken to get to the shoreline, and the months that remained before 4 April 2012 for actionable damage to occur over a wide area. The Claimants do not plead when they first suffered damage, either in general terms or specifically. Neither in the pleadings nor in evidence is there any analysis of the location, alleged date of damage, or mechanism of migration and heads of damage caused by migrating oil. The only assumption that can safely be made is that the further from the shoreline and the more remote in time it may ultimately be alleged that damage was first suffered, the greater will be the need for the case to be properly pleaded and for evidence, both general and specific, to sustain a claim that the individual Claimants suffered actionable damage by Bonga Oil. In these circumstances, apart from being confident that any Claimants who had not suffered damage by 4 April 2012 but who will ultimately prove that they suffered damage thereafter will have suffered damage progressively depending upon their distance from the coast and the existence of pathways for pollutants to follow, it is not possible to determine which Claimants suffered actionable damage when.

In summary, and without conducting a mini-trial of the issue:

The Claimants submit that “the ongoing and unremedied pollution from the December 2011 Spill that continues to blight their land is a continuing nuisance” so that a fresh cause of action accrues each day against STASCO as damage or interference with the use of land occurs. At one point it appeared that the Claimants might be arguing that there was also a continuing duty of care arising in negligence so that a new cause of action arose with every day that the pollution continued to blight the Claimants’ land. If that was ever part of the argument, it was (rightly) not pursued. The Claimants do not claim that STASCO adopted the nuisance; rather, they assert that STASCO caused and then continued it.

In my judgment this issue having been raised by the Claimants, it can and should be resolved now for the reasons set out below: it does not need to be left over to a full trial.

There is no doubt that a nuisance can be a “continuing” one such that every fresh continuance may give rise to a fresh cause of action. The classic example of a continuing nuisance is provided by Battishill v Reed (1856) 18 CB 696 where the

The Claimants rely upon Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 as authority for the proposition that failure to remediate a single event can be a continuing nuisance for this purpose. The first claimant was incorporated to provide the maintenance and service company for leaseholders in a block of flats, the freeholder being the Church Commissioners. In 1989 cracking appeared following a period of drought. In March 1990 engineers reported that the roots of a plane tree on the adjoining pavement had encroached under the property and that if the tree were not removed underpinning of the property would be necessary. In June 1990 the freeholders sold their freehold reversion to the second claimant, Flecksun, which was a wholly owned subsidiary of the first claimant. There was no assignment to Flecksun of any cause of action against the highway authority in respect of any damage caused by the tree. In August 1990 the highway authority was given the engineer’s report and requested to remove the tree, which it declined to do. The first claimant then undertook the necessary underpinning works and the claimants sued the highway authority for the cost of those works, some £570,000. If the tree had been removed, the need to underpin would have been avoided and the cost of cracking to the building would have been £14,000. The House of Lords held that Flecksun was entitled to recover the costs of carrying out the underpinning works.

The central passage in the judgment of Lord Cooke (with whom the other members of the House agreed) is at [33]:

“Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000. On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench.” [Emphasis added]

This reasoning does not assist the Claimants. The highlighted passage shows the determining feature of the case, namely that the continuing presence of the tree roots gave rise to a continuing need for underpinning which would have been avoided if the highway authority had abated the (continuing) nuisance at any time by removing the tree (and, hence, the effect of its roots). The highway authority became responsible for that continuing state of affairs on being notified of the problem and when it declined to abate the nuisance. That is analogous to the person who builds and leaves a structure on or overhanging his neighbour’s land – the classic “continuing” nuisance in this usage. It is quite different from the “normal” case where there is a release (be it of water, gas, smells, or other detrimental things) and that release causes damage or interferes with user of land. In the latter case, there is one occurrence of nuisance for which all damages must be claimed at once even if the consequences of the nuisance persist. So, for example, if in Sedleigh-Denfield the escape of water had formed a lake which caused damage to the plaintiff’s land over a period of weeks, that would have been one occurrence of a legal nuisance despite the extent and duration of the consequential damage, for which all damages should be claimed at once. In the present case there was one escape of oil, for which the Claimants seek to impose liability upon STASCO. It is alleged that the escape has caused the inundation of the Claimants’ land and other heads of damage. Nuisance by polluting oil is no different in principle from nuisance by escape of water, gas smells or other polluting agents. It is in that respect a “normal” case and there is no basis, either in authority or in principle based upon concepts of reasonableness or control to describe the nuisance as “continuing” in the sense contended for by the Claimants or as considered in Delaware Mansions. To treat the present escape as giving rise to a continuing nuisance in the sense asserted by the Claimants would, in my judgment, be a major and unwarranted extension of principle.

For these reasons, the limitation period should not be extended by reference to the concept of a continuing nuisance. The Claimants’ causes of action accrued when each Claimant first suffered sufficient damage for the purposes of a claim in nuisance.

The Claimants submit that “the limitation period for their claims against STASCO has not expired, because the Defendants have deliberately concealed facts relevant to their claims, namely the FUGRO Report and its conclusions.” The submission is supported by evidence from Mr Ekhorutomwen in his fourth and fifth witness statements. Having raised the issue, the Claimants submit that it cannot be resolved now and must await a full trial for determination. For the reasons set out below, I disagree.

The relevant Nigerian Statutes are in terms that are similar to those of s. 32 of the Limitation Act 1980. Section 33 of the Federal Limitation Act provides as follows:

S. 32(1) of the English Limitation Act 1980, so far as relevant, provides:

“(1)

… where in the case of any action for which a period of limitation is prescribed by this Act, either –

(a)

the action is based upon the fraud of the defendant; or

(b)

any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c)

the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

(2)

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

The most obvious difference in the terms of the various statutes is that s. 33(1)(b) of the Federal Limitation Act stipulates that “the right of action is concealed by the fraud of the person” whereas s. 33(1)(b) of the Delta State Limitation Statute is congruent with s. 31(1)(b) of the English statute in stipulating that “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.” The Claimants’ expert does not suggest that these differing stipulations make any material difference in application. He cites a passage from Ajibona v Kolwole (1996) 45 LRCN 2514, 2532 where Ogwugbu JSC said:

“In order to constitute such fraudulent concealment as would in equity, take a case out of the law of limitation, it is not enough that there should be merely a tortious act unknown to the injured party or the enjoyment of his property without title where the rightful owner is ignorant of his right, there has to be some abuse of confidential position some intention at imposition, or some deliberate concealment of the facts.”

This indicates that the touchstones for the application of the doctrine of deliberate concealment under Nigerian Law include that (a) the injured party must be ignorant of the existence of a tortious act having been committed against him and (b) there must be deliberate concealment of the facts that would alert the injured party to the existence of a tortious act having been committed against him. That is, in my judgment entirely consistent with English Law, for the reasons set out below. The Claimants’ expert evidence about the principled application of the doctrine of deliberate concealment under Nigerian Law does not show any material difference from English Law principles. I therefore approach this issue on the assumption that Nigerian Law is materially the same as English Law.

Two principles are important in addressing this issue. First, what must be concealed must be a fact relevant to the existence of the injured party’s cause of action, not simply evidence that will strengthen the injured party’s claim. In Cave v Robinson [2002] UKHL 18 at [60], Lord Scott, with whom the other members of the House agreed, stated that a claimant could bring a case within s. 31(1)(b) of the Limitation Act 1980:

“if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question.”

In The Kriti Palm [2006] EWCA Civ 1601 Rix LJ said at [321]:

“It appears therefore that there must be either active and intentional concealment of a fact relevant to a cause of action, or at least the intentional concealment by omission to speak of a fact relevant to a cause of action which the Defendant knew himself to be under a duty to disclose. There is no decision that anything less than a duty to disclose will suffice in the absence of active concealment.”

It is implicit in this passage that the duty to disclose must be a duty to disclose to the claimant. In my judgment this flows equally from the wording of the English and

At [453] of The Kriti Palm, Buxton LJ referred to the judgment of Rose LJ in Johnson v Chief Constable of Surrey (unreported, 18 October 1992) and said:

“… Johnson stands as authority for the proposition that what must be concealed is something essential to complete the cause of action. It is not enough that evidence that might enhance the claim is concealed, provided that the claim can be properly pleaded without it. The court therefore has to look for the gist of the cause of action that is asserted, to see if that was available to the claimant without knowledge of the concealed material.”

These principles have been relied on and repeated frequently: see, for example, Arcadia Group Brands v Visa [2015] EWCA Civ 883 at [49] per Sir Terence Etherton MR.

Second, where deliberate concealment is demonstrated, it will only prevent time running against the Defendant who carried it out. Thus, in order to prevent time running against STASCO, the Claimants must show deliberate concealment by STASCO. Deliberate concealment by SNEPCO (or, a fortiori, by RDS) would not stop time running against STASCO: see JD Wetherspoon PLC v Van de Berg & Co Ltd and Others [2009] EWHC 639 (Ch) at [630], with which I respectfully agree. There can be no justification for depriving a defendant of a limitation defence that would otherwise have accrued because someone else (not acting on his behalf or as his agent) has deliberately concealed relevant facts from the claimant.

The Claimants’ submissions and the evidence from Mr Ekhorutomwen on this issue fail to discriminate between different companies within the Shell group, referring to them generically as “the Defendants” or simply “Shell”. This can be seen in the reference to “the Defendants” in the summary formulation of their submission set out at [69] above and elsewhere. It is a pervasive failing of Mr Ekhorutomwen’s evidence on this issue. In addition, his evidence makes sweeping claims about the pre-action correspondence which are simply not justified. Thus, there is no sound basis for his assertion that “in my preparation and conduct of these claims on behalf

The tenor of Mr Ekhorutomwen’s evidence is reflected in the Claimants’ written submission that the Defendants are persisting in “the falsehood that Bonga oil never reached the shore” and that “in order to maintain this false position, the Defendants have deliberately concealed the Fugro report. … In the circumstances, the limitation period did not begin to run until 2017 at the earliest, when the Claimants first became aware of the existence of the Fugro Report, or more likely early 2019, when they actually managed to obtain a copy of it”. Leaving aside all other objections, this would have the surprising result that the Claimants issued proceedings before their causes of action had accrued.

Turning specifically to the position of STASCO, the FUGRO report itself does not state who commissioned it or for whose benefit and use it was produced. However, an invoice dated 31 January 2012 from FUGRO Nigeria Limited, addressed to the Shell Petroleum Development Company Nigeria Limited [“SPDC”], appears to relate to the FUGRO report. The evidence of Ms Olafimihan is consistent with that document and is that the report “was commissioned by … SPDC … as the provider of technical support services under the Shell Companies in Nigeria Oil Spill Contingency Plan. …. RDS did not commission the FUGRO Report (nor did any other entity outside Nigeria). The FUGRO Report was commissioned and paid for by SPDC, for the use and benefit of SNEPCO”. While I do not exclude the possibility that this evidence might be challenged at a trial, there is no evidence to support a speculation that STASCO commissioned the FUGRO Report or had it.

Furthermore, the Claimants have not shown any basis for the existence of a duty on STASCO to disclose a copy of the FUGRO Report (assuming for these purposes that it had a copy) either to the Claimants or to the Nigerian Authorities. The Claimants did not communicate with STASCO at all before amendment of the Claim Form and service in April 2018. By then, the Claimants had pleaded the material fact of Bonga oil reaching the shoreline. Since then the obligations of the parties have been governed by the Court’s procedural rules and, because of the pace at which things have progressed, no obligation to give either specific or general disclosure has arisen. Given that what the Claimants complain of is the omission to disclose the document, the absence of any duty to do so is fatal to the Claimants’ submissions: see [321] of The Kriti Palm cited above.

Finally on this issue, the FUGRO Report is not “a fact relevant to the Claimants’ right of action” and withholding of the report (if it were to be proved) would not amount to concealment of “the right of action” within the meaning of the relevant statutes. At its highest it is evidence that may enhance the Claimants’ claim. It is of course necessary for the Claimants in due course to prove that Bonga oil from the December 2011 Spill reached their land (and waters); but that is a fact which they have always asserted vigorously so that it cannot be said they were unaware of it. Nor can it be said that the FUGRO report was necessary to enable the Claimants to advance and, ultimately, plead their case, because it is clear that they had other evidence upon which they relied from the outset. By way of example, the initial letters dated 8 August 2012 asserted that oil from the spill spread to the Claimants’ shoreline and rejected any suggestion to the contrary, relying on the NOSDRA report: the evidence against RDS and SNEPCO was said to be overwhelming. It is clear that the Claimants could plead all relevant facts without the FUGRO report, because they did so by the original Claim Form and Particulars of Claim, both of which alleged that the December 2011 Spill had caused pollution to land.

Amongst the mass of other evidence submitted by the parties for these applications, the Claimants have exhibited other documents bearing on the relevant fact, including a report by Dan Ekotogbo & Co to NOSDRA dated 7 July 2014 and the presentation by the Nigeran Maritime Administration and Safety Agency to the House of Representatives Committee on Environment dated 16 July 2012. These documents may, like the FUGRO Report, also enhance the Claimants’ claim in relation to the question whether the Bonga oil reached land; but I reach my conclusion without reference to them as it is not entirely clear when they became or could reasonably have become available to the Claimants.

For these reasons I accept the substance of the Defendants’ submission that “the FUGRO report is no more than a piece of evidence which may or may not be relevant to the Claimants’ longstanding allegation that oil from the Bonga FPSO impacted their land and waterways.”

The submission that time should be extended against STASCO on the grounds of deliberate concealment of the FUGRO report is therefore rejected. For the avoidance of doubt, because the FUGRO report is evidence and not a fact relevant to the

The STASCO Application falls to be determined in the light of my conclusions on limitation as set out in the preceding section of this judgment. The essential backdrop is provided by my conclusions at [61] above. In particular, (a) the Defendants’ case on limitation is arguable; and (b) it is clear that many Claimants will have suffered actionable damage before 4 April 2012.

Two issues now fall to be determined, namely:

It is now common ground that ifa party wishes to amend a statement of case (a) to correct a mistake or (b) to add or substitute a party after the expiry of the limitation period, the proper procedure to be adopted is as set out in CPR r. 17.4(3) and r. 19.5(3)(a) respectively; and that a purported amendment under CPR r. 17.1 (which is the procedure adopted by the Claimants in the present case) is not merely an irregularity but is a nullity. It follows from my conclusions thus far that amendment of the Claim Form on 4 April to join STASCO would have been a nullity in respect of many and, arguably, all Claimants’ claims if brought by separate actions. I consider later in this judgment quite how this works in the context of a representative action.

The Claimants submit that the Defendants are precluded by an estoppel by convention from challenging the correction of the name of the Second Defendant to STASCO in the amended Claim Form dated 4 April 2018.

The principles are well known and not substantially in dispute. In The Indian Endurance [1998] AC 878, 913E Lord Steyn, with whom the other members of the House agreed, said:

“It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption. … It is not enough that each of the two parties acts on an assumption not communicated to the other. …”

A slightly fuller statement of principle is provided by Spencer Bower, “RelianceBased Estoppel”, (5^th Edition, March 2017) at [8.6]:

“i)

it is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly, or implicitly by words or conduct from which the necessary sharing can properly be inferred, shared between them.

ii)

The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party of rely upon it.

iii)

The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter.

iv)

That reliance must have occurred in connection with some subsequent mutual dealing between the parties.

v)

Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”

In the absence of a duty to speak, “mere silence, inactivity or failure to take a point cannot be enough to found an estoppel by convention.”: see HIH Casualty v Axa [2002] EWCA Civ 1253 at [30]. This is because, in the absence of a duty to speak, silence or inactivity will not be unequivocal, which is an essential prerequisite to the existence of an estoppel by convention. This was made clear in Fortisbank SA v Trenwick International Ltd v Others [2005] EWHC 399 (Comm) at [30] per Gloster J:

“i)

The claimant must show that “there [is] a clear, unequivocal, unambiguous and unconditional promise by the insurers that they will not raise the defence that the action is statute [or otherwise time-] barred. The focus has to be on whether or not they were giving up that right”; see per Ward LJ in Seechurn - v - Ace [2002] 2 Lloyds Rep 390 at paragraph 26.

ii)

The claimant must establish that the conduct relied upon is not capable of more than one explanation, since such conduct is indeed equivocal. Mere silence and inaction are of their nature equivocal. As Goff LJ said in Allied Marine Transport Limited -v- Vale do Rio Doce Navegacao SA [1985] 2 Lloyds Rep 18 at page 20:

“It is well settled that the principle [of equitable estoppel] requires that one person should have made an unequivocal representation that the does not intend to enforce his strict legal rights against the other; it is difficult to imagine how silence and inaction can be anything but equivocal …

But silence and inaction are of their nature equivocal, for the simple reason that there can be more than once reason why the person concerned has been silent or inactive.””

Two further strands of authority are relevant. First, it is trite law that the English

The Claimants referred to and relied upon Hiscox v Outhwaite [1991] 2 WLR 1321. That case provides a clear example of a shared assumption being communicated by an exchange of letters between the parties: see 1325G-1326B. It does not raise any separate point of principle that needs to be mentioned here.

The Claimants rely upon the fact that limitation was not raised by the Defendants (and then only obliquely) until service of evidence in April 2019 in relation to the

The relevant procedural history from 4 April 2018 includes the fact that the Amended Claim form alleged claims in relation to the December 2011 Spill and to the July 2012 Spill, the latter of which would have been less than six years before the date of the purported amendment. On 25 April 2018 RDS and STASCO acknowledged service, indicating their intention to contest jurisdiction. The CMC on 27 April 2018 was held on the direction of the Court in the light of the Claimants’ application to serve SNEPCO out of the jurisdiction and because of a concern that RDS might not be a suitable anchor defendant. Fraser J directed that RDS should attend. The order made on that CMC makes plain that RDS and STASCO were represented and that the hearing was concerned with the application to serve out. The order made after the hearing on 29 June 2018 includes permission for the Claimants to serve SNEPCO out of the jurisdiction and for RDS and STASCO to file and serve any application to challenge jurisdiction by 28 September 2018. The jurisdiction applications were issued on 28 September 2018, with supporting evidence. The CMC on 5 October

I accept that an estoppel by convention could operate even in relation to an act which is a nullity. However, in my judgment the Claimants’ submission that the Defendants are precluded from challenging the validity of the amendment to join STASCO because of an estoppel by convention cannot succeed, for three main reasons. First, there is no evidence from which a relevant joint assumption could be inferred. Second, there was no unequivocal communication of any such assumption from one party to another. Third, the Claimants have not shown detriment.

At its highest, what the Claimants can identify is silence – a failure to take limitation as a point before April 2019. Yet the Claimants cannot identify a duty upon the Defendants to raise limitation sooner if they wished to rely upon it. In the absence of special circumstances, none of which apply here, limitation is a point which may remain moot until it is pleaded. That time has not yet come. More positively, what the Defendants did was to indicate by their Acknowledgements of Service that they intended to challenge jurisdiction, which they did by issuing their applications within the time limited by the order of the Court. There was no moment between service of the Acknowledgements of Service and service of the jurisdiction applications when the Claimants could reasonably have assumed that the Defendants would not take limitation as a point in relation to the joinder of STASCO; and after service of the jurisdiction applications there was no moment before April 2019 when the Defendants were obliged to raise the limitation point if they were going to rely upon it.

Nor can the Claimants draw any comfort from the attendance of RDS and STASCO at the three CMCs. Each of those three hearings was concerned with the Claimants’ applications to serve SNEPCO out of the jurisdiction and, later, giving directions for the jurisdiction applications. None was concerned with substantive defences such as limitation. Far from being occasions when the Defendants were under an obligation to raise limitation, it would have been surprising if they had chosen to do so. To the contrary, the Defendants having indicated their intention to contest jurisdiction were likely to do as little as possible in the course of hearings concerned with an application to serve SNEPCO out of the jurisdiction for fear of it being said that they had waived their jurisdiction challenges.

In these circumstances there is no basis for a conclusion that there was a shared assumption that the Defendants would not take a limitation point in relation to the joinder of STASCO. Equally, there is no basis for a conclusion that any such assumption was communicated either by the Defendants to the Claimants or by the Claimants to the Defendants.

Furthermore, even if all other prerequisites were met, the Claimants have not shown that they have suffered any detriment as a consequence of the Defendants not taking the limitation point until April 2019. What would have happened if they had taken the point earlier? In my judgment it is overwhelmingly probable that the outcome

The procedural history and the factual basis for the proposed estoppel by convention are clear on the information before the Court and do not require a mini-trial. For the reasons I have given, the Claimants have failed to establish the existence of an estoppel by convention precluding the Defendants from challenging the validity of the joinder of STASCO.

The Notice of Application for the STASCO Application relied upon CPR r. 17.4(3) and CPR r. 19.5(3)(a) in the alternative. The Claimants’ original skeleton for the September hearing stated that the application was made under r. 17.4(3). However, by the time of the hearing, the Claimants had shifted their position and made the application under r. 19.5(3)(a). Whatever the motivation, I consider that the Claimants’ ultimate reliance upon r. 19.5(3)(a) was correct, for the reasons I outline below.

The starting point is s. 35 of the Limitation Act 1980, which provides as follows:

“New claims in pending actions: rules of court.

(1)

For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—

(a)

in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b)

in the case of any other new claim, on the same date as the original action.

(2)

In this section a new claim means any claim by way of setoff or counterclaim, and any claim involving either—

(a)

the addition or substitution of a new cause of action; or

(b)

the addition or substitution of a new party;

…

(3)

Except as provided … by rules of court, neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim. …

(4)

Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

(5)

The conditions referred to in subsection (4) above are the following—

(a)

in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and

(b)

in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

(6)

The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either—

(a)

the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; …”

The relevant provisions of the CPR are CPR r. 17.1(1) (under which the Claimants purported to amend the Claim Form on 4 April 2018), and CPR r.17.4(3) and CPR r. 19.5(3)(a) (which are relied upon by the Claimants for the STASCO Application). As appears below, CPR r. 17.1(1) is applicable before while CPR r.17.4(3) and CPR r.19.5(3)(a) are applicable after the expiry of a relevant limitation period.

CPR r. 17.1(1) provides:

“A party may amend his statement of case at any time before it has been served on any other party.” 107.CPR r 17.4 provides:

“(1)

This rule applies where –

(a)

a party applies to amend his statement of case in one of the ways mentioned in this rule; and

(b)

a period of limitation has expired under –

(i)

the Limitation Act 1980;

(ii)

the Foreign Limitation Periods Act 1984; or

(iii)

any other enactment which allows such an amendment, or under which such an amendment is allowed.

(2)

The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

(3)

The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

…”

CPR r. 19.5 provides:

“(1)

This rule applies to a change of parties after the end of a period of limitation under – (a) the Limitation Act 1980;

(b)

the Foreign Limitation Periods Act 1984; or

(c)

any other enactment which allows such a change, or under which such a change is allowed.

(2)

The court may add or substitute a party only if –

(a)

the relevant limitation period was current when the proceedings were started; and

(b)

the addition or substitution is necessary.

(3)

The addition or substitution of a party is necessary only if the court is satisfied that –

(a)

the new party is to be substituted for a party who was named in the claim form in mistake for the new party;

…”

These provisions of the CPR are similar but not identical to RSC Order 20(5), which provided:

“(1)

… The Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2)

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. …

(3)

An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.

(4)

…

(5)

An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”

RSC O. 20 r. 5 was apt to cover situations that would now be covered by either CPR

The distinction between the two CPR rules was explained in Gregson v Channel Four Television Corporation [2000] C.P. Rep. 60 by May L.J. at [18]:

“Rule 19.5 applies where the application is to substitute a new party for a party who was named in the claim form in mistake for the new party. By contrast, rule 17.4(3) applies where the intended party was named in the claim form but there was a genuine mistake as to the name of the party and no one was misled. As Mr David Foskett Q.C., sitting as a Deputy High Court Judge, said in International Distillers and Vintners Ltd v. Hillebrand and Others (17th December 1999):

“Part [19.5] deals with cases where the Claimant mistakenly names the wrong party as Defendant. Part 17.4 deals with cases where the Claimant misnames the Defendant.””

A similar explanation is to be found in the White Book in section 17.4.5:

“Although r.17.4(3) and r.19.5(3)(a) are alike in the principles to be applied they differ as to the type of cases they cover. Most of the cases in which r.17.4(3) is appropriate are cases in which the mistake relates to a defendant upon whom the claim form has been served even though that defendant is misnamed therein. … Cases in which r.19.5(3)(a) is appropriate are those in which, if an amendment is allowed, a new person will be joined to the proceedings. If that person is joined as a defendant the claim form must subsequently be served upon him and he will then be required to acknowledge service or file a defence; a defendant for whom he is to be substituted will cease to be a party to the proceedings.”

I respectfully agree with this summary, though choice of the appropriate rule does not depend upon whether or not the claim form has been served.

It is now well established that r. 17.4(3) indicates three stages of an enquiry:

“(1)

was the mistake genuine, (2) was it a mistake which would not have caused reasonable doubt as to the identity of the claimant, and (3) if those questions were answered in favour of the applicant, should the court exercise its discretion in favour of the applicant: the discretion being explicit from the use of the work “may”?”: see Best Friends Group and anor v Barclays Bank plc [2018] EWCA Civ 601 at [3].

Best was a case where the mistake was said to relate to the naming of the claimant. The reference to the “identity of the claimant” applies mutatis mutandis to the identity of the intended defendant where the application relates to the name of the defendant.

By contrast, in an application under CPR r. 19.5(3)(a) there is no formal jurisdictional requirement that the mistake would not have caused reasonable doubt as to the identity of the party who was intending to sue or intended to be sued, as the case may be. But the question whether there was potential for the mistake to mislead may be relevant to the Court’s exercise of its discretion: see Lockheed Martin Corpn v Willis Group Ltd [2010] EWCA Civ 927 at [37].

The Claimants submit that because Mr Ekhorutomwen has stated unequivocally that he genuinely but mistakenly did believe that the name of the Shell entity responsible for the vessel the MV Northia was “Shell International Limited” and he is a solicitor of the Court of England and Wales who has verified his fourth statement with a statement of truth, “that is the end of it”. That submission is wrong in principle. The Claimants must satisfy the Court that a relevant mistake was made, and the Court must consider their submissions on the basis of all available evidence. There are numerous cases where the Court has not accepted the word of a solicitor that he made a relevant mistake: see, for example, Adelson at [67]-[74] and Best at [40].

In Kesslar v Moore & Tibbits [2005] PNLR 286 at [23] Buxton LJ said: “The best source for what the claimant actually intended is to be found in the points of claim.” However, provided the evidence is relevant, there is no principled basis for limiting the evidence upon which the Court may rely when considering whether or not to accept the assertion that a mistake was made.

The question whether a mistake was “misleading” within the meaning of RSC O. 20 r. 5 was one of four specific questions addressed by the Court of Appeal in Adelson. At [28] the questions posed by the Court in relation to RSC O. 20 r. 5 included:

“(iii)

What criteria govern whether the mistake is misleading and, in particular must the court be satisfied that, despite the mistake the person intended to be sued should have been aware of the true identity of the person intending to sue and that he was the person intended to be sued?” The answer given at [43 (iii)] was:

“The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.”

The phrase used in CPR r. 17.4(3) does not appear in RSC O. 20 r. 5(3). However it is not clear (or, so far as I am aware, established by authority) what the difference, if any, is between the RSC O. 20 r 5(3) words “not misleading” and the CPR r. 17.4(3) phrase “not one which would cause reasonable doubt as to the identity of the party in question.” In Adelson at [44] the Court of Appeal appears to have treated them as having materially the same meaning when it observed that:

“… section 35 and CPR r. 19.5(3), in contrast to CPR r. 17.4(3) and Ord 20 r.5, do not specify that the mistake must not be such as to cause any reasonable doubt as to the party intending to sue or be sued.”

With the benefit of this limited guidance, and in the absence of any submission that there is a material difference between the two provisions, I shall treat them as being materially the same. I merely note that neither phrase specifies that the other party must have been misled or that the mistake actually caused reasonable doubt. Neither phrase is used in CPR r. 19.5(3) and the question whether the Defendants were or would have been misled or left in reasonable doubt goes to the question of discretion, which, in my judgment, does not require such detailed analysis of precise terms.

In my judgment, when considering the exercise of discretion it may be relevant both (a) that the mistake was misleading or such as could cause reasonable doubt and (b) that the mistake actually misled or caused reasonable doubt in the mind of the other party.

The authorities demonstrate that the Court can, where appropriate, look beyond the formal court documents to extraneous circumstances when deciding whether a mistake was misleading. In The Sardinia Sulcis the proceedings were brought in the name of “the owners of the Sardinia Sulcis” and the Defendants had admitted the paragraph of the Statement of Claim which alleged that the Plaintiffs were at all material times the owners of the Sardinia Sulcis; but in reaching the conclusion that the mistake was not misleading, the Court of Appeal referred to and evidently relied upon the facts that the Plaintiff’s solicitors had told the Defendants before proceedings were issued that the real plaintiffs were the time charterers, that the time charterers would be suing in the name of the owners, and that the vessel had been sold: see 206 col. 1.

Best differs from the present litigation in that the change was to the name of the person intending to sue and not the person intending to be sued. However, it is instructive because, as in the present case, the amendment was purportedly made outside the limitation period pursuant to CPR r. 17(1) before service of proceedings so that the first the other party knew of the action was when the Claimants served the original claim form, the amended claim form and the particulars of claim upon them: see [8]. So, in one sense, the original “mistake” in naming the Claimant in the Claim Form could not have actually misled the Defendants because it had been “corrected” before service on them; and the Particulars of Claim that were served with the original and amended Claim Forms were evidently intended to take the case forward in the light of the amended Claim Form. Despite this, the Judge at first instance concluded that the mistake was such as to cause reasonable doubt as to the identity of the party in question.

The approach adopted by the Judge was summarised by the Court of Appeal at [36] as follows:

“… the Judge then went on to consider the second question: if there were a genuine mistake, was it such as to cause reasonable doubt as to the identity of the party in question? On the one hand, it was clearly stated on the Claim Form that the claimant was the party that entered into the swaps, which was known by both parties to be Mr Bennett. However, the name 'Best Friends Group' was so close to BFVG that there could be reasonable doubt and a possibility of an alleged agency. The fact that the Particulars of Claim sought damages which were suffered by BFVG and not by Mr Bennett further demonstrated the reasonableness of the doubt as to the true identity of the claimant.”

The Court of Appeal held that the Judge was entitled to the view he took on this point (as well as his rejection of the submission that there was a relevant “mistake”): see [40]. It is therefore evident that, at least for the purposes of CPR r. 17.4 a mistake may be such as to cause reasonable doubt as to the identity of an intended defendant, even though the Claimant has attempted to correct the error before service on the Defendant.

Three cases that were cited to the Court appear to me to be relevant to the exercise of discretion that may have to be made in the present case.

In Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662, the Claimant issued proceedings against Merck in the mistaken belief that the batch number of an MMR vaccine indicated that Merck had been the manufacturer when, as later became clear, the manufacturer had been SmithKline Beecham. Proceedings had been issued in August 1999. A letter of claim was sent to Merck in January 2000 which quoted the correct batch number (that being the mechanism for advancing individual claims in the MMR litigation rather than starting and serving separate claimant-specific proceedings). The letter of response accepted that the Claimant had been vaccinated with vaccine from that batch but said that Merck could not confirm that it was their product. Only on 22 August 2002, more than 10 years after vaccination, did Merck’s solicitors tell the Claimant’s solicitors that the batch number was most unlikely to be a Merck batch. The Claimant’s solicitors then issued an application under CPR r. 19.5(a) to substitute SmithKline Beecham for Merck as defendant. As appears from the first instance judgment (26 February 2001), the Judge was satisfied that there had been a genuine mistake about the identity of the defendant within the meaning of the rule because “those representing the Claimant … always intended to sue the producer of the vaccine which was administered to him”. When it came to the exercise of his discretion, the Judge accepted that there was no evidence that SmithKline Beecham had been aware of the original letter to Merck and that SmithKline Beecham had not been notified of a claim by this claimant before the expiry of the 10 year long-stop limitation period after vaccination. However, he exercised his discretion in favour of permitting the amendment (with its consequential relating back) identifying the most cogent factor as being that SmithKline Beecham would suffer no prejudice (other than a potential liability for one further individual claim) because it had for some time been aware of a number of other very similar claims against it and had been preparing to defend them. On the other hand, if permission was refused, the young Claimant would be deprived of any remedy under the 1987 Act.

The Court of Appeal upheld the Judge’s approach to “mistake” under CPR r. 19.5(a). Keene LJ (with whom the other members of the court agreed) continued at [44]:

“Instinctively one is reluctant to accept an interpretation of section 35(6) of the 1980 Act which might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period. Such a reaction initially led me to doubt the conclusion reached by Bell J. But on further consideration it seems to me that any potential injustice can be successfully avoided by the exercise of the court’s discretion under section 35. It is perhaps not without significance that there is no appeal in the present case against the exercise by Bell J of his discretion against SK”

Horne-Roberts was considered by the Court of Appeal in Adelson at [57]:

“Almost all the cases involve circumstances in which (i) there was a connection between the party whose name was used in the claim form and the party intending to sue, or intended to be sued and (ii) where the party intended to be sued, or his agent, was aware of the proceedings and of the mistake so that no injustice was caused by the amendment. In the SmithKline case …, however, Keene LJ accepted that the Sardinia Sulcis test could be satisfied where the correct defendant was unaware of the claim until the limitation period had expired. We agree with Keene LJ's comment that, in such a case, the court will be likely to exercise its discretion against giving permission to make the amendment.”

In Best, the Court of Appeal also upheld the Judge’s indication that he would not have exercised his discretion in favour of granting the application even if he had been satisfied in relation to the first two issues under CPR r. 17.4(3). The Court of Appeal identified as relevant factors that (a) there had been delay in making the application and (b) that the claimants had made an unwarranted allegation of deliberate concealment: see [42].

I take these authorities to mean that in a case under CPR r. 19.5(a), even where a claimant demonstrates relevant mistake, the exercise of the Court’s discretion may take into account broad considerations of justice and prejudice. Whether the mistake was misleading or such as would cause reasonable doubt as to the identity of the party in question may be material considerations in exercising the discretion. The fact that a party is not notified of a claim against it until after the expiry of the limitation period is also likely to be material and, in such a case, the Court is likely (but not bound) to exercise its discretion against giving leave.

The burden of proving that the requirements of the rules are satisfied rests upon the Claimants. Their evidence in support of the application is provided by [36]-[54] of Mr Ekhorutomwen’s fourth witness statement. It is seriously deficient, not least in making assertions for which there is no apparent justification. Specifically:

The only evidence which provides any possible corroboration or consistency with Mr Ekhorutomwen’s asserted belief that SIL was responsible for the vessel is provided by the letters dated 22 September 2017 and 20 October 2017, to which I refer at [52] above and which have not been shown to be inauthentic.

The letter from the solicitors to their clients dated 22 September 2017 is consistent with Mr Ekhorutomwen’s evidence that he received information from a whistleblower to the effect that Shell International was “the controller and possible owner of the ship that was loading when the first Spill occurred in 2011”. Later in the letter, the solicitors wrote:

“Subject to the documents that we receive from the whistleblower, it is now clear that your claim should be filed against: (i) RDS for being the overall controller of the FPSO and being the parent company of the other Shell entities involved in the first Spill (ii) Shell International for being the controller of the loading Ship and (iii) SNEPCO for being the company at the other end of the pipeline.” [Emphasis added]

The highlighted words are important, and the solicitors reiterated in the letter that:

“we have not had sight of these documents and must therefore reserve our judgment until such time as we receive them. But in the interim, we will be writing to Shell and inviting them to make available to us, all reports that they may have commissioned in respect of the first Bonga Spill.”

There is no evidence that the whistleblower provided any documents before proceedings were issued. Furthermore, this letter does not fit easily with the preaction correspondence. The solicitors had already written to RDS on 21 August 2017 requesting any and all internal reports that RDS had commissioned and continued to hold. After 22 September 2017, despite the rapidly approaching limitation deadline, the solicitors did not in fact write again until 16 October 2017 when they wrote again to RDS, merely reiterating their August letter and request, with no specific request about the vessel. And, inexplicably, if they were interested in pursuing the information provided by the whistleblower, the solicitors still did not write to SIL, either about the vessel or at all.

Turning to Mr Jalla’s letter to SNEPCO dated 20 October 2017, it stated that the Claimants’ lawyers had now confirmed that the ship that was loading was controlled by a “sister subsidiary of your company called Shell International” and that the operation was supervised by “your parent company, Royal Dutch Shell”. It said that, in the absence of settlement, the Claimants would have no other choice than to start an action in England which would of necessity be against Shell International and Royal Dutch Shell; and it included a request that SNEPCO make available “all the information and particulars, details, addresses, reports that you hold concerning Shell International and Royal Dutch Shell.”

Returning to Mr Ekhorutomwen’s evidence:

The Claim Form and Particulars of Claim themselves provide relevant evidence on this issue.

The Claim Form gave as the brief details of the claim that:

“The Claimants claim damages/compensation, interest and costs from the Defendants for (1) negligence, (2) nuisance, (3) breach of statutory duty, … under Nigerian law arising from inter alia two oil spills emanating from a floating production, storage and off-loading (FPSO) oil and gas facility owned, controlled and operated by the Defendants situate in and known as the Bonga oil field off-shore … Federal Republic of Nigeria which occurred on 20 December 2011 and 15 July 2012 causing pollution to land, pecuniary loss and damage to the Claimants”

These details expressly identify that the claims are brought against the Defendants on the basis of their ownership, control and operation of the FPSO. The vessel is not mentioned and no claim is brought against any of the Defendants in relation to either ownership, control or operation of any vessel. In this respect the Claim Form remained unchanged when amended on 4 April 2018.

The Particulars of Claim included a Statement of Truth signed by Mr Ekhorutomwen. [1] of the Particulars of Claim alleged (at least in the alternative) that STASCO owned or controlled the Bonga facilities. [7] of the Particulars of Claim alleges that

Whatever else may be said, Mr Ekhorutomwen’s evidence makes clear that the Claimants intended to sue SIL when they first issued proceedings. This is not a case where the Claimants intended to sue STASCO and simply got the name wrong. Put another way, the STASCO Application is an application to substitute one party (STASCO) for another (SIL). It is not a case where the intended party was named in the original Claim Form but there was a genuine mistake as to the name of the party. Accordingly, the STASCO Application is properly brought under CPR r. 19.5(3)(a) and not under CPR r. 17.4(3).

The Claimants accept in their written submissions that this issue can and should be determined at this stage.

Mr Ekhorutomwen’s evidence, repeated on more than one occasion in his 4^th Witness Statement, is to the effect that, at the time of issuing proceedings, the Claimants intended to sue the Shell entity responsible for the vessel MV Northia. I give considerable weight to the word of a solicitor on a question of fact such as this. However, having analysed the available material, I am not satisfied that his evidence can be accepted; and I am not satisfied that the Claimants have proved that a mistake falling within CPR r. 19(5) was made. It is because of the seriousness (a) of rejecting the word of a solicitor when his evidence is backed by a statement of truth, and (b) of the potential implications of this finding that I have spent so much time reviewing the evidence as set out above.

My conclusion in the light of this review is that it is not possible to rely upon Mr

I give substantial weight to the fact that nothing in the pre-action correspondence suggests that the Claimants were at any stage before issue of proceedings intending to bring a claim arising out of the involvement of the waiting tanker. Had that been the Claimants’ intention, basic competence would have demanded that their intention be foreshadowed by the solicitors in the pre-action correspondence, for example by a request for information relevant to making a claim in relation to the tanker or, as a bare minimum, by referring to the tanker in the course of the correspondence in terms which could suggest that it was considered to be relevant to potential claims. But there was nothing in the pre-action correspondence that fulfils even the bare minimum requirement: the only mention of “a waiting tanker” came in the August 2012 letter and was not in terms to suggest that the actions of the tanker were of any interest. The pre-action correspondence therefore supports a conclusion that the Claimants did

Mr Ekhorutomwen places reliance upon the communications from SIL. However, there is nothing in SIL’s communications to suggest that it was doing anything other than replying on behalf of RDS. If Mr Ekhorutomwen had really harboured a belief that SIL was responsible for the tanker and was therefore in the Claimants’ sights, his failure ever to write to them is inexplicable. This is true whether, as he says, he formed the view that SIL was responsible for the tanker on the basis of what SIL wrote or because that is what he was told by an unidentified contact.

On the assumption that the letter from the solicitors to their clients dated 22 September 2017 is authentic (as to which I make no finding save that it has not been shown to be inauthentic at this stage) it provides corroboration for Mr Ekhorutomwen’s evidence that he received information that “Shell International” was the controller and possible owner of the vessel. However, reference to “Shell International” is imprecise and does not necessarily or even probably mean that it is a shorthand for SIL. Furthermore, even if the letter is taken as corroboration that someone spoke to him about the tanker, his letter to his clients suggesting that a claim should be filed against “Shell International for being the controller of the loading Ship” is heavily qualified by the words indicating the need for documents from the whistleblower. On Mr Ekhorutomwen’s evidence he first received any relevant documents after proceedings were issued. His stated intention to reserve judgment until he received documents therefore reduces the weight to be placed upon that letter as evidence in support of an intention on 13 December 2017 to sue SIL as the party responsible for the vessel. The weight is further reduced by the absence of any evidence that the solicitors took proactive steps to confirm the identity of the company responsible for the vessel before issuing protective proceedings on 13 December 2017. Mr Ekhorutomwen says that he carried out internet searches after issuing proceedings which, together with the Master’s Letter of Protest, led him to STASCO. Had he carried out the same searches before issuing proceedings, it must be assumed he would have obtained the same results. As it is, the only explanation for not carrying out searches earlier appears to be that he did not know the identity of the MV Northia. That is difficult to credit given his evidence that indicates he had the DPR Memorandum and the fact that the name of the vessel would have been publicly available had he been interested in it.

The letter from Mr Jalla to SNEPCO dated 20 October 2017 is also to be treated as authentic for the purposes of the present application. It contains a threat to sue “Shell International” in England and is to that extent supportive of the Claimants’ position. However, the weight to be attached to it is again reduced by the fact that the threat was not followed up by any correspondence from the solicitors which, for reasons I have already given, is extraordinary if their intention at any time before 13 December 2017 was to sue those responsible for the vessel.

The original Claim Form provides evidence of the Claimants’ intentions on 13 December 2017: see [137] above. Bearing in mind the observation of Buxton LJ in Kesslar I take the formulation of the original Claim Form as positive evidence that the Claimants did not intend to sue SIL because of any association with the vessel. Once again, the fact that the proceedings were issued hard up against the perceived expiry of the limitation period is relevant: basic competence required the Claim Form to

Before reaching a conclusion on the evidence that I have summarised, it is necessary to consider whether it is realistic to suppose that SIL was joined for a reason other than that it was responsible for the vessel. In my judgment it is realistic. Because there is no reliable evidence on the actual process by which SIL came to be joined, what follows is inevitably speculation. But it appears feasible that, when issuing proceedings, these solicitors had SIL’s correspondence in mind and (wrongly) took it as indicative of involvement and shared responsibility with RDS. It is then equally

Whatever the true explanation, I conclude that the absence of any good evidence of an intention to issue against SIL on the basis of its involvement with a vessel combined with (a) the pre-action correspondence being inconsistent with any such intention and (b) the positive evidence provided by the original Claim Form as to the basis of the claim that was then being advanced leaves me some considerable distance short of being satisfied that there was a relevant mistake within the meaning of CPR r. 19(5).

It follows that I have no discretion to allow the amendment of the Claim Form to join STASCO if and to the extent that the application is made after the expiry of the relevant limitation period.

Had I found that I had a discretion I would not have exercised it in favour of the Claimants. Since the question is hypothetical I can give my reasons shortly. First, the Claimants have not explained why they amended the Claim Form without reference to the Court in April 2018 when they must have known that there were significant limitation issues that required them to use the procedures under CPR r. 17.4 or r. 19.5: they knew they had limitation difficulties because they had issued protective proceedings and the amendment was being made well over six years after the December 2011 Spill. Second, the effect of the amendment was that STASCO was first notified of its alleged involvement well over six years after the December 2011 Spill. Neither STASCO nor SIL, RDS or SNEPCO had any reason to investigate the facts of the Northia’s involvement until the claim was in fact statute barred for many, if not all, of the Claimants. This constitutes substantial prejudice which is not eliminated if it were subsequently to be shown that some Claimants first suffered actionable damage after April 2012. Third, the mistake (if such it was) led to the naming of SIL which was misleading and such as to cause reasonable doubt as to an intention to sue STASCO. Although the Claimants purported to correct this mistake before service of proceedings, this remains a matter that may be taken into consideration when exercising the Court’s discretion: see the reference to Best at [121] above. Fourth, the Claimants then delayed until June 2019 to issue the STASCO Application. Although it is true that the Defendants had not raised the issue with them, the primary responsibility for regularising the position rested with the Claimants who had inappropriately relied upon the CPR r. 17.1 procedure in the first place. Fifth, in an attempt to stave off inevitable findings to the effect that the Defendants had an accrued limitation defence for many (and possibly all) of the individual claims being brought, the Claimants raised an unwarranted deliberate concealment argument that was unjustified both on the facts and the appropriate legal principles. It may be said that this is to “double-count” because the existence of a discretion might have arisen if the deliberate concealment argument had succeeded. I therefore make clear that I would have declined to exercise my discretion in favour of the Claimants even if giving this point no weight.

If I were wrong in my conclusion that CPR r. 17.4(3) is not the appropriate provision, I would hold that an application under that provision should fail because (a) no relevant mistake has been shown, for the reasons given above, and (b) the mistake (if proved) was one which would cause reasonable doubt as to the identity of the party in question: there was nothing in the Claim Form bearing the mistaken name of SIL or any other extraneous circumstance that would have made clear that STASCO was intended to be named and not SIL.

For the reasons given above, if this were a conventional action brought by one Claimant known to live close to the foreshore, I would dismiss the STASCO Application on the basis that the absence of a relevant mistake leaves the Court with no discretion to allow it. However, as I have already indicated, the fact that this action is brought as a representative action raises difficult questions which are best considered at the end of this judgment having considered the various other applications first. At this stage, the overriding principle can best be illustrated by imagining that the Claimants had brought two separate actions, for one of which

I will, for convenience, refer back to the hypothetical Actions A and B for illustrative purposes later in this judgment.

The Claimants say that they have brought this application out of abundance of caution and in response to the arguments raised by the Defendants in their skeleton arguments for the September and October hearings.

The Defendants submit that:

The Claimants submit that:

The basic principles are not in dispute and need not be set out extensively or with great citation of authority here. If an amendment has realistic prospects of success and does not cause prejudice which cannot be compensated in costs, then it should generally be allowed so that the real dispute between the parties can be decided. Conversely, if an amendment has no realistic prospect of success it may be refused. If an application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination and the parties have had an adequate opportunity to address it in argument, it should

“grasp the nettle”. Otherwise the Court should not attempt the summary determination of issues that can only be fairly determined at a trial. Also, the Court should be wary of attempting to resolve controversial issues of law in a developing area.

More complicated issues arise where it is arguable that a limitation period has expired: see [20] to [26] above. The Court’s jurisdiction to allow an amendment which involves the addition or substitution of a new cause of action or claim after the relevant limitation period has expired is limited by s. 35(3) of the Limitation Act 1980 and CPR r. 17.4(2), which I have set out at [104] and [107] above.

In order to decide whether a party’s amendments raise a new cause of action it is normally sufficient to compare the existing statements of case with the statements of case that are proposed by the party amending. Numerous statements of high authority have provided descriptions or definitions of what constitutes a cause of action in this context. One such was provided by Millett LJ in Paragon Finance v Thakerar [1999] 1 All ER 400 at 405:

“The classic definition of a cause of action was given by Brett J in Cooke v Gill (1873) LR 8 CP 107 at p. 116:-

“Cause of action” has been held from the earliest times to mean every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse” (my emphasis).

In the Thakerar case Chadwick J cited the more recent definition offered by Diplock LJ in Letang v Cooper [1965] 1 QB 232 CA at pp. 242-3 and approved in Steamship Mutual Underwriting Association v Trollop & Colls [1986] 33 BLR 77 at p. 92:-

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”

I do not think that Diplock LJ was intending a different definition from that of Brett J. However it is formulated, only those facts which are material to be proved are to be taken into account. The pleading of unnecessary allegations or the addition of further instances or better particulars do not amount to a distinct cause of action. The selection of the material facts to define the cause of action must be made at the highest level of abstraction.”

The reference to “the highest level of abstraction” indicates that a broad approach should be taken; but there are limits that are set down or illustrated by authority. Thus the mere fact that an existing claim is pleaded in negligence does not of itself mean that a different set of facts that would entitle a claimant to obtain a remedy in negligence is not a new cause of action for the purposes of s. 35 and the rule: see

The two stages of the enquiry are illustrated by the decision of the Court of Appeal in Stockwell v Society of Lloyds [2007] EWCA Civ 930 at [53]-[54];

“53.

… The new claim does not arise out of the facts on which the old claim was based if, in order to prove it, new facts have to be added. That is why this court has said that the basic test is whether the plea introduces new facts: Goode v Martin [2002]1 WLR 1828, para 42.

54.

The additional possibility that the new facts are substantially the same as those already relied on is limited P &O NedlloydBV v Arab Metals Co [2005] 1 WLR 3733, para 42, per Colman J, to:

“something going no further than minor differences likely to be the subject of inquiry but not involving any major investigation and/or differences merely collateral to the main substance of the new claim, proof of which would not necessarily be essential to its success.”

The policy underlying the statutory requirement that a new claim should arise out of the same facts or substantially the same facts as are already in issue between the parties was explained by Colman J in BP v Aon [2006] 1 Lloyd's Rep 549, in a passage later approved by the Court of Appeal in Ballinger v Mercer [2014] 1 W.L.R. 3597 per Tomlinson LJ. Colman J said:

“52.

At first instance in Goode v Martin [2001] 3 All ER 562 I considered the purpose of section 35(5) in the following passage: ‘Whether one factual basis is “substantially the same” as another factual basis obviously involves a value judgment, but the relevant criteria must clearly have regard to the main purpose for which the qualification to the power to give permission to amend is introduced. That purpose is to avoid placing a defendant in the position where if the amendment is allowed he will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim.’

53.

In Lloyd's Bank plc v Rogers [1997] TLR 154 Hobhouse LJ said of section 35: ‘The policy of the section was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely on any cause of action which substantially arises from those facts.’

54.

The substance of the purpose of the exception in subsection (5) is thus based on the assumption that the party against whom the proposed amendment is directed will not be prejudiced because that party will, for the purposes of the pre-existing matters [in] issue, already have had to investigate the same or substantially the same facts.”

In Goode v Martin the claimant suffered injury whilst a guest on the defendant's yacht. She issued a claim for negligence based upon the factual account of a fellow guest. The defence pleaded a different factual account of the accident. After the limitation period had expired, the claimant sought to amend her statement of claim to plead an alternative case, based on the defendant's version of the facts. The Court of Appeal held that she could do so. At [46]-[47] Brooke LJ (with whom the other members of the Court agreed) interpreted the rule as if the words "are already in issue on" in the corresponding passage in subsection 35(5)(a) of the Limitation Act were also present in CPR 17.4(2): see 46-47. At [42] he said:

This approach was explained by Sales LJ in Mastercard Inc v Deutsche Bahn AG [2017] CP Rep 26, at [42]:

“The important feature of Goode v Martin is that in order to make out her newly formulated claim, the claimant did not need or propose to introduce any additional facts or matters beyond those which the defendant himself had raised in his pleaded defence. In effect, the claimant was allowed to say, "Well, if you are going to defend yourself against my existing claim by reference to those facts you have now pleaded in your defence, I rely on those very facts (if established at trial) to say that you are liable to me". In such a case, the defendant has chosen to put those facts in issue in relation to the claimant's existing claim and there is no unfairness and no subversion of the intended effect of the limitation defence introduced by Parliament to allow the claimant to rely on the defendant's own case as part of her claim against him.”

Normally the evaluation of what has been put in issue by a Defendant will be confined to examination of the pleadings. However, it is now established that, albeit in rare cases, the same result may follow where there has been an extensive evidential battle on a summary judgment application or on a jurisdictional question because it may be possible to discern that facts are already in issue in a case prior to being crystallised in formal pleadings: see Samba Financial Group v Mark Byers [2019] EWCA Civ 416 at [49] per McCombe LJ. I take the policy underlying this approach to be the same as before: the critical question is whether a Defendant will be prejudiced by having to investigate facts for the first time outside the limitation period. If he has already volunteered them, he is not subject to that particular prejudice.

It does not follow that, if the threshold requirements laid down by s. 35 and CPR r. 17.4 are satisfied, the Court’s discretion will be exercised in a claimant’s favour. First, the Court must consider whether the new claim appears tenable or is merely fanciful. Second, and of equal importance, the Court must bear in mind that it is being called upon to exercise its discretion in circumstances where allowing an amendment will or may deprive the defendant of an accrued limitation defence. That being so, the factors bearing on the exercise of the Court’s discretion are substantially encompassed in the terms of s. 32A of the Limitation Act and include matters such as (a) the length of and reasons for the delay on the part of the claimant, and (b) the extent to which relevant evidence is likely to be unavailable or lacking in cogency having regard to the delay: see Wood v Chief Constable of the West Midlands Police [2004] EWCA Civ 1638 at [84].

I reject the Claimants’ submission that time has not run because of the existence of a cause or causes of action in continuing nuisance or because of deliberate concealment for the reasons set out above at [62] ff and [69] ff. Though the alleged estoppel is not identical, I reject the submission based on estoppel by convention for the same reasons as set out at [89] ff above.

For the purposes of this application, I leave over the question whether a claim against STASCO based on the presence of the vessel has reasonable prospects of success: see [193] below.

The real questions arising on this application are therefore:

I reject the submission that the original Claim Form covered a claim based upon the involvement of the vessel, for the reasons summarised at [137] above. It is no answer to submit (as the Claimants do) that the FPSO was at one end of the operation and the vessel at the other. The December 2011 Spill came directly from the pipework that formed part of the Bonga facility before it had reached either the SPM or the pipework between the SPM and the vessel or the vessel itself. It was open to the Claimants to mount a claim on the basis of the Defendants’ responsibility as owners, operators and controllers of the FPSO without shouldering the additional burdens of implicating the vessel at all; and they did so unequivocally by their Claim Form. Therefore the claim in the original Particulars of Claim based upon the presence of the vessel is liable to be struck out unless the Claim Form is amended to cover it.

Yes. Apart from the fact that the December 2011 Spill occurred and the allegations of causation and damage, there is no overlap between the facts necessary to prove the original claim based on operation and control of the FPSO and the new claim based upon the presence of the vessel. The fact that the oil was being transferred on beyond the SPM to load the vessel is not a necessary fact for the purposes of the claim based on operation of the FPSO. Although it may be said that there is a prospective claim in negligence arising from the presence of the vessel and that there is also a claim in negligence based on the operation of FPSO, the facts giving rise to the existence of a duty on those responsible for the FPSO are different from those giving rise to the existence of a duty on those responsible for the vessel. As now put, the Claimants wish to allege that both those responsible for the FPSO and those responsible for the vessel should have noticed the differential between the shore and ship volumes; but these are separate allegations in each case. The source of the obligations to keep watch on the respective volumes is not the same; and the fact (if proved) that the differential was observable by and should have been acted on by those responsible for the FPSO does not overlap with the separate question whether the discrepancy should have been observed by those responsible for the vessel.

Put shortly, the claim advanced by the original Claim Form did not require any investigation of the actions of the vessel and those responsible for it. The facts alleged in the Particulars of Claim against STASCO as a Defendant responsible for the vessel included the following main points that formed no part of a claim against those responsible for the FPSO:

Yes. The Claimants’ concession in relation to the position on amendment of the Claim Form on 4 April 2018 must apply (with the addition of a further six days) to the position on 10 April 2018, when the need to amend the Claim Form to cover the claim based on the presence of the vessel first arose, and October 2019 when the application to amend the Claim Form was made and heard. My conclusions on the running of time, summarised at [61] above, are equally applicable here.

It cannot reasonably be said that introducing a claim based on the presence of the vessel would introduce “something going no further than minor differences likely to be the subject of inquiry but not involving any major investigation.” While not treating this as if it were a statutory test, the virtually complete lack of essential factual overlap between a claim against those responsible for the FPSO and a claim against those responsible for the vessel means that the facts essential to the proof of a claim against those responsible for the vessel cannot be described as substantially the same as those already in issue or covered by the original Claim Form.

The Claimants submit that this conclusion should be avoided because the Defendants have now put in issue the fact that STASCO was the Technical Manager of the MV Northia. However, this is the wrong way around, because the introduction of the fact that STASCO was the Technical Manager was a response to the Claimants’ introduction of a claim against the vessel by the Particulars of Claim and not the reason for that introduction out of time. It cannot be said that the fact that STASCO was the Technical Manager was a matter that was going to be in issue in any event: it was irrelevant to the claim as contained in the original Claim Form. Furthermore, the submission confuses (a) the statutory requirement that the new claim should arise out of the same or substantially the same facts as are already in issue on any claim previously made in the original action with (b) the policy underlying that requirement as explained in Goode v Martin. The fact that the Defendants have raised certain matters in response to a new claim does not assist in deciding whether the new claim arises from the same or substantially the same matters as were already in issue on the terms of the original Claim Form before the new claim was raised.

It follows that there is no discretion to allow the amendment to the extent that it is and was statute barred. If I had concluded that the claim based upon the presence of the vessel had arisen from the same or substantially the same facts as had already been in issue between the parties, the absence of prejudice to the Defendants in investigating the new claim would have weighed in favour of exercising the Court’s discretion in favour of allowing the amendment, as would the adverse effect upon some or all of the Claimants of terminating their claim against STASCO based upon the presence of the vessel. However, there would have been factors that militated strongly against allowing the amendment. First, it would deprive STASCO of an accrued limitation defence against some (and, arguably, all) Claimants. Second, no explanation has been provided for the failure to mount a claim based on the presence of the vessel from the outset. Third, the Claimants have delayed from April 2018 to October 2019 before seeking the necessary leave to amend. Fourth, this delay is in the context of an action issued at the very end of what is alleged to be the six year limitation period after years of sporadic and ineffective pre-action conduct, including the absence of a formal letter of claim articulating the Claimants’ case and the absence of any significant efforts to obtain relevant documentation either from the Defendants or from publicly available sources. If this were a single action, I would be inclined to refuse the application, leaving it to the individual Claimant to have protected themselves by issuing protective proceedings, if that had not already been done. The alternative, giving permission but subject and without prejudice to the Defendant having permission to plead and prove all matters of limitation at the trial, would also have its attractions.

For the reasons given above, if this were a conventional action brought by one Claimant known to live close to the foreshore, I would dismiss this application on the basis that the amendment of the Claim Form introduces a new claim that does not arise from the same or substantially the same facts as were or would be in issue on the original Claim Form. This application differs from the STASCO Application because no amendment of the Claim Form to include the claim based on the presence of the vessel is yet in place, whereas the substitution of the name of STASCO would have been effective in the context of a conventional “Action B”. However, the basic problem is the same: how to do justice between the Claimants and the Defendants

The draft Amended Particulars of Claim makes amendments relating to both SNEPCO and STASCO. Although this application was issued before the application to amend the Claim Form, it is convenient and logical to deal with the amendment of the Particulars of Claim after dealing with the application to amend the Claim Form. I shall first deal with the present application to amend the Particulars of Claim without regard to the problems arising from my conclusions on amendment of the Claim Form, bringing those into account later in this judgment.

The principles arising on this application are the same as set out at [158] above. The Claimants concede that it is reasonably arguable that the amendments are outside the applicable limitation period; and my conclusions on limitation remain apposite and applicable. The Claimants submit that the Court should adopt an approach similar to that adopted in Blue Tropic and, if the position is not clear cut, allow the amendments as set out in the draft Amended Particulars of Claim but without prejudice to the Defendants’ entitlement to argue at trial that the amendments are time barred.

The Claimants submit that:

This application to amend the Particulars of Claim must be read subject to my conclusions about amending the Claim Form. However, with that qualification, the real questions arising on this application are therefore:

I have outlined the essential elements of the claim against STASCO as pleaded in the original Particulars of Claim at [173] above. The original pleading was extremely vague to the extent of being embarrassing in its lack of precision in critical respects, including:

The Claimants submit that, because they are Nigerian individuals and communities affected by the spills, they did not have access to the wealth of historical technical information at the Defendants’ disposal. That is true. However, it does not begin to justify the Claimants’ consequential submission that “in those circumstances, it was inevitable that [the Claimants’] original POC were pleaded at a high level of generality, … .” On the information that is available to the Court on these applications, it appears clear that the Claimants, with the benefit of competent representation from relatively soon after the spill, could and should have been able to identify the vessel, STASCO’s existence, the nature of STASCO’s involvement with the vessel, and the basis of a claim that is now advanced by the Draft Amended Particulars of Claim well before the expiry of 6 years after the date of the spill. Instead, the analysis I have set out earlier in this judgment shows that the Claimants simply did not apply their minds to the role of the MV Northia and made no concerted or effective efforts to investigate it or questions of responsibility for the conduct of those involved with the vessel. I reject the factual submission that it was inevitable that the original POC was pleaded as it was or “at a high level of generality” rather than as now proposed. The identity of the MV Northia and STASCO’s involvement as the “Technical Manager”, the “Company”, the “Operator” and the “Document Holder” could and should have been investigated well within the limitation period if they were matters of interest to the Claimants.

In support of their jurisdiction application, the Defendants submitted witness statements in September 2018 from Mr Taylor, Ms Olafimihan and Mr Somoye taking issue with the claim as presented in the original Particulars of Claim. Specifically:

It is clear that the Claimants re-assessed their case against STASCO in the light of this evidence. The product of their re-assessment was the draft Amended Particulars of Claim and Mr Ekhorutomwen’s explanatory third witness statement, which he made on 11 March 2019. It is apparent from that witness statement that the Claimants had by then accumulated various documents though the dates on which most were obtained is unknown. For example, Mr Ekhorutomwen states that “further enquiries” were made of the relevant P&I club and that the Certificate of Entry shows STASCO to be the Technical Manager: but there is no detail about what enquiries had been made previously or the results of such enquiries: nor is there any explanation why the Certificate of Entry could not have been obtained at any time previously. Similarly, an extract from the Lloyds Register showed STASCO to be the “Document of Compliance Holder”, “Operator” and “Company” for the MV Northia at all material times. No evidence is given about when the extract was obtained and no evidence has been given to suggest that such documents might not have been available before.

The Draft Amended Particulars of Claim includes the following allegations that are essential to the case and claim that the Claimants now wish to bring:

In summary, the duties alleged to be owed by STASCO are now said to arise as a result of its status as Technical Manager, Operator, Company and Document Holder and not as bareboat charterer. Similarly, STASCO’s liability for the acts or omissions of those concerned with operation of the MV Northia is no longer based upon the implication of a relationship of employment by a bareboat charterer but from the new allegations of STASCO’s status and the operation of international codes.

The Defendants provided a further witness statement from Mr Taylor made on 25

The Defendants’ central submission is that its involvement with the MV Northia arose from a contractual agreement with the owner of the vessel to act as Technical Manager and that it was entitled to and did sub-contract its responsibilities to others so that it had no residual responsibility that could found the existence of a duty of care to third parties such as the Claimants. It did not employ those on the MV Northia and was not in a relationship with them that could give rise to either direct or vicarious liability for their acts or omissions.

The Claimants’ central submission is that STASCO’s positions as “Technical Manager”, the “Company”, the “Operator” and the “Document Holder” for the vessel, even though derived from a contractual agreement between STASCO and the Owner, gave rise to non-delegable responsibilities and duties under detailed and extensive international provisions that underpin the law of obligations for those engaged with international maritime trade. By way of example only, the Claimants submit that:

Despite the weight of evidence adduced for these applications and the quality of the submissions on both sides for and against the existence of a duty of care owed by STASCO to the Claimants and for or against the imposition of direct or vicarious liability for the operation of the MV Northia, these are not issues that should or can be resolved in the context of interim applications to strike out or amend. The circumstances in which direct or vicarious liability may be imposed upon a person either (a) who assumes a role to which responsibilities may be attached or (b) for the acts or omissions of persons with whom they are not in an employer/employee relationship are among the most unsettled, important and difficult in the modern law of tort, as is amply demonstrated by recent cases of the highest authority including Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510, Various Claimants v The Institute of the Brothers of the Christian Schools [2013] 2 AC 1, Cox v Ministry of Justice [2016] AC 660 and Armes v Nottinghamshire County Council [2018] AC 335. Notoriously, the existence and scope of an asserted duty of care is intensely fact sensitive. Despite the quantity of the evidence that has been put in for these applications, there are obvious gaps – quite apart from the fact that none of the evidence has yet been tested. To give one example only: the Claimants’ case focuses intently upon STASCO’s obligation to devise and implement the SMS for the vessel. The Defendants have put in evidence to suggest that they complied with their obligations in respect of the SMS because they have certificates which say that they did. But the actual SMS is not before the court. It is therefore quite impossible for the court to form an independent judgment about its contents and whether it was sufficient. Furthermore, I have already referred to the fact that the Claimants have not yet addressed the extent to which their claims are or may be claims for pure economic loss: see [56] above. That being so, warning bells ring loud when it is suggested that the Court should make definitive rulings on the existence or scope of duties of care in tort based on either assumed or pleaded facts. Further warning bells ring when the Court is told that no Technical Manager of a vessel has previously been held liable for damage caused to third party Claimants.

I do not exclude the possibility that, in some cases, the facts so clearly lie within or well outside established areas and categories of duty that questions of duty and liability may be resolved on interim applications; but in my judgment the interrelationship of the international codes and provisions upon which the Claimants rely and the “merely” contractual basis which the Defendants trenchantly emphasise do not fall within those categories of case. I am left in the position that I cannot exclude the reasonable prospect that the circumstances upon which the Claimants rely may give rise to relevant enforceable duties for the purposes of the law of tort. I therefore proceed on that basis.

Yes. The scope of the new facts that are essential to found the claim as articulated in the Amended Particulars of Claim is the primary indicator. Those new facts go to the root of the claim as now advanced that a duty of care was owed by STASCO in tort. In summary, the original Particulars of Claim were based upon the incorrect allegation that STASCO was the bareboat charterer of the vessel, from which all else appeared to follow. Now, the existence of a duty of care is said to result from STASCO’s status as Technical Manager, Company, DOC Holder and Operator of the vessel and a complex scheme of international provisions that are said to be the consequence of that status. The proposed amended claim cannot properly be regarded as mere particularisation of the original formulation and claim because STASCO’s status (other than as bareboat charterer) formed no part (let alone an essential part) of the original formulation. The material change in the essential features of the claim as originally pleaded and as now set out in the proposed Amended Particulars of Claim demonstrate that the new pleading introduces a new cause (or new causes) of action.

Yes, as is rightly conceded for the reasons set out above. The only question, as before, is whether there are any Claimants for whom the proposed amendment is not being brought outside the applicable limitation period and, if so, how many they may be.

Subject to the question whether the principles explained in Goode v Martin assist the Claimants, I would hold that the new cause (or causes) of action alleged against STASCO in the draft Amended Particulars of Claim do not arise out of the same or substantially the same facts as those previously pleaded in the original Particulars of Claim. First, as identified above, the essential facts that must be proved to establish the case as now proposed go far beyond the essential facts that were originally pleaded. Second, the disparity between the essential facts that must be proved to establish the case as now pleaded cannot reasonably be described as “minor differences likely to be the subject of enquiry but not involving any major investigation” or inessential differences that are merely collateral to the success of the new case: see [162] above. Furthermore, the new case requires STASCO after the expiry of the limitation period to engage in a detailed enquiry of the conduct of those on board the MV Northia that goes well beyond what was required by the original pleading: see [163] above.

It may be argued that the reassessment of the Claimants’ case against STASCO was provoked by Mr Taylor putting in evidence that STASCO was not the bareboat charterer of the vessel and that its only involvement was as the contractually engaged “Technical Manager” for the owner. Since the draft Amended Particulars of Claim followed that reassessment, it may be said (though more tenuously) that the new facts “arise from” his statement that STASCO was the Technical Manager.

However, if one considers the principles underlying Goode v Martin, I would not accept that they are intended to cover the present case. In Goode v Martin itself, no new facts were being introduced by the Claimant over and above what had been introduced by the Defendant: “she merely wants to say that if the defendant succeeds in establishing his version of the facts, she will still win because those facts too show that he was negligent … .”: see [164] above. Here the Claimants wish to go well

I would therefore hold that the new cause(s) of action that the Claimants set out in the proposed Amended Particulars of Claim do not arise out of the same or substantially the same facts as those pleaded in the original Particulars of Claim.

It follows that there is no discretion to allow the amendments against STASCO to the extent that they are statute barred. If I had concluded that Mr Taylor’s evidence had effectively put all or substantially all facts in issue, so that the Court had a discretion to allow the amendments even if statute barred, the absence of unfairness as described by Sales LJ would support an exercise of discretion in the Claimants’ favour to allow the amendments. However, there are other features that militate against allowing the amendments. First is their sheer extent. Second, no good reason has been given for the failure to identify the new case well before the expiry of the limitation period. Third, more generally, is the absence of any significant efforts to obtain relevant information or documents from the Defendants or publicly available sources before the expiry of the limitation period. Fourth, it would deprive STASCO of an accrued limitation defence against some (and, arguably, all) Claimants. On balance, therefore, I would be inclined to refuse the application, leaving it to the individual Claimants to have protected themselves in the ways identified by the Court of Appeal in Chandra v Brooke. Once again the alternative - giving permission but subject and without prejudice to the Defendant having permission to plead and prove all matters of limitation at the trial - would also have its attractions.

The same problem exists as before: how to do justice between the Claimants and the Defendants when, although it is reasonably arguable that the proposed amendments are being sought outside the applicable limitation period for all Claimants, that issue cannot be determined now and there could, at least in theory, be some Claimants for whom a six-year limitation period has not yet expired. Adopting the same approach by reference to notional Action A and Action B (with suitable adjustment of dates), permission would be refused in Action A but granted in Action B.

The application to amend the Particulars of Claim as against SNEPCO can be addressed more shortly. The original Particulars of Claim alleged that SNEPCO owned or controlled the Bonga facilities: [1] and [3]. It asserted claims in negligence, nuisance, trespass and Rylands v Fletcher on the basis of SNEPCO’s control of and responsibility for the facilities, with alternative claims, based on SNEPCO’s alleged position as licence holder, under Nigerian statutory provisions: [2], [10], [13], [37], [41]

The draft Amended Particulars of Claim maintains the allegation that the facilities including the flexible flowline are owned and/or controlled by SNEPCO: [1]. It abandons the claim alleging that SNEPCO was the licence holder, which leads to extensive deletions of provisions that were previously alleged to be relevant: [2] et seq. Instead, it adopts the evidence of Ms Olafimihan that SNEPCO was the contracted operator of the Bonga facility and therefore responsible for health and environmental safety and stopping the spread of oil slicks: [7]. On this basis it is alleged that SNEPCO owed the Claimants a duty of care to prevent or minimise oil spills during the loading of oil onto tankers: [7(h)], [58].

When pleading particulars of negligence against SNEPCO at [73(1)], allegations in the original Particulars of Claim that SNEPCO (a) failed to maintain the Bonga facilities in good repair, (b) failed to safeguard against carelessness on the part of staff engaged in the transfer of oil and (c) failed to provide adequate supervision and equipment are all deleted. In their place are newly formulated allegations that SNEPCO (a) failed to carry out checks or inspections on the flexible flowline immediately before loading, (b) failed to undertake annual or routine maintenance of the flexible flowline, (c) failed to ensure the flexible flowline was properly used, handled or stored, and (d) failed to pressure test the flexible flowline. Further allegations from the original Particulars of Claim that SNEPCO failed to cap and contain the flow of spilled oil or to limit or contain the extent of the leakage are broadly retained. New allegations are added, namely that SNEPCO failed to implement a safe management system as required under the ISM Code and failed to provide adequate training and supervision for its operatives.

Adopting the same approach as before, I would answer the relevant questions as follows:

This and the following sections of this judgment are subject and without prejudice to the findings I have already made about limitation, its consequences and whether or to what extent amendments should be allowed.

The central tenets on which the Defendants rest their jurisdiction applications are that:

Article 4(1) of the Recast Brussels Regulation provides that:

“persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

STASCO is domiciled in England. The English Court therefore has jurisdiction over the Claimant’s claims against STASCO. The effect of the mandatory terms of Article 4(1) is that jurisdiction that is vested in the English Court by the article may not be challenged on forum non conveniens grounds: see Owusu v Jackson and Others (Case C-281/02) [2005] QB 801, Vedanta Resources PLC v Lungowe [2019] UKSC 20 at [16].

Article 6(1) of the Recast Brussels Regulation provides:

“If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall … be determined by the law of that Member State.”

SNEPCO is domiciled in Nigeria, which is not a Member State. The jurisdiction of the English Court is therefore to be determined by the law of England.

The relevant applicable law is now set out at paragraph 3.1(3) of Practice Direction 6(B), which provides:

“The claimant may serve a claim form out of the jurisdiction without the permission of the court under rule 6.36 where –

…

(3)

A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –

(a)

there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b)

the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”

The general approach to be adopted by the Court on an application for permission to serve a foreign defendant out of the jurisdiction was summarised by the Privy Council in Altimo Holdings v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 at [71]:

“On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, 453-457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i e a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e g Carvill America Inc v Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457, para 24. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context “good arguable case” connotes that one side has a much better argument than the other: … . Third, the claimant must satisfy the court that in all the circumstances the Isle of Man is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. ”

More recently, the position where a claimant relies upon the “necessary or proper party” test was summarised by Lord Briggs (with whom the other members of the Supreme Court agreed) in Vedanta at [20]:

“The express terms of the Practice Direction set out only part of what a claimant relying upon the necessary or proper party gateway must show. It is common ground that, by reference to those terms and well-settled authority, the claimant must demonstrate as follows:

(i)

that the claims against the anchor defendant involve a real issue to be tried;

(ii)

if so, that it is reasonable for the court to try that issue;

(iii)

that the foreign defendant is a necessary or proper party to the claims against the anchor defendant;

(iv)

that the claims against the foreign defendant have a real prospect of success;

(v)

that, either, England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural forum.”

When considering whether there is “a real issue to be tried” the test to be applied is effectively the same as the test for summary judgment: see Altimo at [71], cited above. In Okpabi v Royal Dutch Shell [2018] EWCA Civ 191 at [33] Simon LJ posed the same question slightly differently: “is the claim bound to fail, which is essentially the Part 24 test, whether the claimants have no real prospect of succeeding on the claim?”

The second requirement identified by Lord Briggs, that it is reasonable for the court to try that issue, has been widely debated. However, provided the claimant can show a good arguable case, it is clear that the fact that the anchor defendant is sued for the sole or predominant purpose of bringing the foreign defendant into the action within the jurisdiction is not fatal to an application to serve the foreign defendant out of the jurisdiction, though it may be relevant at a later stage when the Court comes to exercise its discretion: see Altimo at [79] and Erste Group Bank AC v JSC “VMZ Red October” and others [2015] EWCA Civ 379 at [43]. Equally, where jurisdiction against the anchor defendant is founded on Article 4 of the Recast Brussels Regulation, it would be inappropriate and wrong to allow an argument that this second requirement is not satisfied if the argument is founded on what would in other circumstances be forum non conveniens grounds. To allow such an argument would subvert the principle established by Owusu and Vedanta: see [209] above.

For the purposes of these applications the Defendants accept that, if their other arguments fail, SNEPCO would be a proper party to the claim against STASCO. In my judgment that concession is correct and I say no more about this requirement. Equally, while reserving their position for later, they accept that, subject to limitation questions, the claims against SNEPCO have a real prospect of success on the merits. Once again, that concession is correct and I say no more about the fourth requirement.

The fifth requirement was considered at length in Vedanta at [66]-[87], having recorded at [16] that Article 4(1) as explained by Owusu “conferred a right on any claimant (regardless of their domicile) to sue an English domiciled defendant in England, free from jurisdictional challenge upon forum non conveniens grounds, even where the competing candidates for jurisdiction were England (part of a member state) and some other non-member state such as, here, Zambia.” In such circumstances:

“In cases were the court has found that, in practice, the claimants will in any event continue against the anchor defendant in England, the avoidance of irreconcilable judgments has frequently been found to be decisive in favour of England as the proper place, even in cases where all the other connecting factors appeared to favour a foreign jurisdiction.” [See [70]]

Later in his speech, at [84], Lord Briggs referred to the risk of irreconcilable judgments in a case where jurisdiction against the anchor defendant is founded on Article 4 of the Recast Brussels Regulation as being “a trump card” when the court comes to consider the question whether to permit service out of the jurisdiction on a foreign defendant.

The Defendants’ submission that reliance on the Recast Brussels Regulation to found jurisdiction in England and Wales is an abuse of EU Law and should therefore not be allowed is materially identical to a submission made to and rejected by the Supreme

The provisions of the Regulation that are most relevant to the Defendants’ application for a stay are Recitals 23 and 24 and Articles 4(1), 29, 30, 33 and 34, of which I have already set out Article 4(1) at [209] above.

Recitals 23 and 24 state:

“(23)

This Regulation should provide for a flexible mechanism allowing the court of the Member States to take into account proceedings pending before the courts of third States, considering in particular whether a judgment of a third State will be capable of recognition and enforcement in the Member State concerned under the law of that Member State and the proper administration of justice.

When taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it. Such circumstances may include connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time.” 221.Articles 29, 30, 33 and 34 provide:

“SECTION 9

Lis Pendens – related actions

Article 29

1.

Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Article 30

1.

Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2.

Where the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

…

Article 33

1.

Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and proceedings are pending before a court of a third State at the time when a court in a Member State is seised of an action involving the same cause of action and between the same parties as the proceedings in the court of the third State, the court of the Member state may stay the proceedings if:

(a)

it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and

(b)

the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

2.

The court of the Member State may continue the proceedings at any time if:

(a)

the proceedings in the court of the third State are themselves stayed or discontinued;

(b)

it appears to the court of the Member State that the proceedings in the court of the third State are unlikely to be concluded within a reasonable time; or

(c)

the continuation of the proceedings is required for the proper administration of justice.

…

Article 34

1.

Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and an action is pending before a court of a third State at the time when a court in a Member State is seised of an action which is related to the action in the court of the third State, the court of the Member State may stay the proceedings if:

(a)

it is expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(b)

it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and

(c)

the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

2.

The court of the Member State may continue the proceedings at any time if:

(a)

it appears to the court of the Member State that there is no longer a risk of irreconcilable judgments;

(b)

the proceedings in the court of the third State are themselves stayed or discontinued;

(c)

it appears to the court of the Member State that the proceedings in the court of the third State are unlikely to be concluded within a reasonable time; or

(d)

the continuation of the proceedings is required for the proper administration of justice.”

Articles 29 and 33 apply where proceedings in different jurisdictions involve the same cause of action and are between the same parties. Articles 30 and 34 apply where proceedings in different jurisdictions are “related” without satisfying the additional prerequisites for the application of Articles 29 and 33 (i.e. the same cause of action and between the same parties). Article 30(3) provides a definition of when actions shall be deemed to be “related” for the purposes of that article: they are related where they are “so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from different proceedings.” There is no such definition of “related actions” for the purposes of Article 34, but the discretion to stay an action under that article does not arise unless “it is expedient to hear and determine the related actions to avoid the risk of irreconcilable judgment resulting from separate proceedings”: see Article 34(1)(a). Although there is a semantic argument that this means that cases falling within Article 34(1)(a) are a subset of “related actions”, I cannot conceive of circumstances where this would

Because Articles 30 and 34 do not require the proceedings to involve the same cause of action and to be between the same parties, it is plain that the “risk of irreconcilable judgments” to which Articles 30(3) and 34(1)(a) refer cannot require that there be a risk that one judgment may give rise to an issue estoppel affecting the other. I am not aware of any binding authority that defines what would and would not amount to “irreconcilable judgments” for the purposes of Articles 30 and 34. In Blomqvist v Zavarco [2016] Ch 128, Mr David Donaldson QC (sitting as a Deputy High Court Judge) said obiter that:

“The premise of the first pre-condition is that the actions are related in the sense that they may result in irreconcilable judgments if allowed to proceed in parallel. Though that may arise from findings of fact as well as decisions of law: see Gascoigne v Pyrah [1994] IL Pr 82, para 42, they would have to be points which would or might form an essential part of the basis of the judgments, effectively part of their res judicata effect, absent which they would not be irreconcilable.”

I think this passage means that not all points of difference would render judgments “irreconcilable” within the meaning of the Article; rather, the points of difference

The decision of the Court of Appeal in PJSC Commercial Bank Privatbank v Kolomoisky [2019] EWCA Civ 1708 was handed down just after the hearing of the present applications. It establishes that “expedient” in Article 34(1)(a) means that it is desirable that the actions should be heard together and does not mean or imply that the actions must be capable of being consolidated or heard together in one jurisdiction: see [191]. However, the fact that actions could not be consolidated and heard together is relevant to the exercise of the Court’s discretion and, in the absence of some strong countervailing factor, will be a compelling reason for refusing a stay: see [192], [210]. This is not least because, if the proceedings will not be heard together in the third state, there remains the risk of irreconcilable judgments: see [210].

It is common ground that Article 4(1) founds jurisdiction for the claim against STASCO. In the light of Vedanta, it is not an abuse of the process or of EU Law for the Claimants to bring the claim against STASCO within the jurisdiction of its domicile and reliance on the Article cannot be challenged on forum non conveniens grounds.

The Defendant submits that there is no real issue to be tried against STASCO. I have explained, albeit briefly, why I do not consider that it is possible to reach reliable conclusions at this stage on whether or not STASCO owed a duty of care to the Claimants and, if so, what the scope of that duty might be: see [191] above. Whether or not STASCO had or retained legal responsibility for the operation of the Northia goes to the heart of all of the claims that the Claimants now wish to bring against STASCO. It is therefore impossible for the Court at this stage to reach a valid conclusion that there should be reverse summary judgment in its favour. Subject to questions of limitation, therefore, the English court has jurisdiction to try the claims against STASCO.

In their written submissions the Defendants rely upon a number of claims brought by groups of claimants or communities before various courts in Nigeria and one action of rather different complexion, known as the Federal Enforcement Action [“FEA”]. They submit that the English proceedings against STASCO should be stayed, at least temporarily, in order to avoid the risk of irreconcilable judgments being reached in England and in one or more of the Nigerian proceedings by waiting for the determinations of the Nigerian Courts and then taking proper account of those determinations in disposing of the English proceedings. The Defendants submit that, by the imposition of a stay, the court would avoid “a course of conflict with the courts of a friendly state” and avoid “cutting across executive actions of the Nigerian State in relation to property situated within its territory” which the Defendants submit would be in breach of the act of state doctrine and considerations of comity.

The Defendants do not submit that the Claimants should now bring their claims against STASCO in Nigeria or that, if they were able to do so, the claims against STASCO could and would be consolidated or heard together with existing claims and proceedings now pending in Nigeria. Quite apart from the limitation difficulties that the Claimants would inevitably now face if they were to institute proceedings in Nigeria, that seems to me to be an entirely realistic stance for the Defendants to adopt. I therefore merely mention in passing that no detailed argument was advanced as to whether the Nigerian courts could or would accept jurisdiction over claims by these Claimants against STASCO and that I am not in a position to decide that question one way or another. Subject to one point, the jurisdiction of the Nigerian courts over STASCO is both moot and irrelevant because of the way in which the Defendants seek to justify the imposition of a stay of the present proceedings. The one exception is that STASCO is a named defendant in one Nigerian action where the claim has been struck out without STASCO having to take any steps. I accept that it is at least plausible that STASCO would seek to challenge jurisdiction if the strike-out were to

The Defendants’ oral submissions on this issue were clearly and cogently advanced by Dr Blake. He concentrated his submissions on the FEA, without abandoning reliance upon the other actions. I therefore deal with and take into account all the actions upon which the Defendants have relied. However, for reasons that appear below, I consider that Dr Blake was right to concentrate on the FEA.

The present state of the various Nigerian proceedings upon which the Defendants rely is as follows:

Leaving on one side the FEA for the moment, the situation of the other 11 actions may be summarised as follows:

Turning to the FEA Action:

It is a fact material to the exercise of the court’s discretion on these applications that the Defendants in these proceedings rely upon the existence of the FEA as grounds for imposing a stay pursuant to Article 34 while at the same time SNEPCO is maintaining its root and branch opposition to the validity (as well as the factual merits) of the FEA. That is apparent both from the terms of SNEPCO’s Defence in the FEA and also from the separate proceedings in Lagos challenging the right of NOSDRA to impose penalties.

There is a dispute between the experts on Nigerian Law in the present proceedings about whether or not the FEA is lawfully constituted. It would not be appropriate for the English court on these applications to try to reach a binding conclusion on this issue (even on an interim basis) given that (a) the evidence of the experts on Nigerian law in these proceedings has not been tested and (b) this is a fundamental issue on which the Nigerian Courts are going to have to reach a binding conclusion, either in the context of the FEA or in the context of the Lagos proceedings, or both. However, it is material to the exercise of the Court’s discretion on the Defendants’ application for a stay pursuant to Article 34 that the Defendants’ expert, Mr Fagbohnulu, says that:

“[the FEA] is a novel claim – of a type never before brought in Nigeria. It raises a number of difficult questions of both substantive law and procedure, which have never before been adjudicated by the Nigerian Courts. … However, it remains for the Abuja High Court (and any appellate courts subsequently seized) to determine whether the [FEA] is unmeritorious.

Given the novelty of the issues raised, and the lack of any Nigerian law precedent in this area, I cannot (nor can any other expert) say definitively whether the Attorney General’s claim will succeed. That being said … I do not believe that the Attorney General’s case is so manifestly unarguable that the action should be disregarded by a foreign court. … In my opinion, the Attorney General has at least a prima facie case. If it were otherwise, I would expect the sophisticated defendants involved in that case would have applied for strike out of the action, which they have not.”

Later he expresses the opinion that “I do not consider the Government’s position [in the FEA] is so perverse or so manifestly unarguable as to be disregarded.”

I have reservations about the last sentence of the first passage because of the combination of the root and branch opposition demonstrated by SNEPCO’s defence in the FEA and the bringing of the constitutional motion in the Lagos court. Subject to that I accept it as a reasonable summation of the current standing of the FEA. Consequently, I would not disregard its existence; but I do not assume it to be by any means established that the FEA will proceed to a trial of issues that include the substantive factual issues about the December 2011 Spill that underpin the decision by NOSDRA to impose sanctions.

Subject to those reservations, there is identifiable overlap between the FEA and the present proceedings:

I note in passing that one side-issue raised by the parties is whether the Claimants in the present proceedings are associated with the FEA. To avoid such a possibility, the Claimants have attempted to disavow the FEA Action by letters to the Attorney General of Nigeria dated 21 November 2018 and to the Registrar of the Federal High Court in Abuja dated 4 March 2019. Apparently there has been no reply to those letters and their effect is disputed by the Defendant. Once again there is a dispute between the experts on Nigerian law, which this court is not at present in a position to resolve, about the effectiveness of the Claimants’ disavowal of the FEA. It will be a matter for the Nigerian courts in due course to determine whether the English Claimants (or any of them) are parties to or affected by the FEA. Apart from the possibility that either SNEPCO or others might raise a plea of issue estoppel arising as between one action and another, the real significance of this dispute, once again, is that it may go to the question of double recovery. However, the determination of such issues is at present a distant prospect and one that cannot be resolved now.

It is, however, material to note that the Defendants’ application for a stay, so far as it is based upon the FEA, is based upon an action which is disavowed by the Claimants and the validity of which is challenged root and branch (at least in Nigeria) by the Defendant.

Taking these factors into account, I now consider whether the criteria for granting a stay of the English proceedings against STASCO are satisfied so that the Defendants’ application should be granted. It is common ground that the English court’s jurisdiction over STASCO is founded on Article 4 and that the judgment of the Nigerian Courts will be capable of recognition and enforcement in England. The remaining questions that arise under Article 34 are therefore:

In theory, it would obviously be desirable for all issues relating to the December 2011 Spill to be resolved in one forum for a number of reasons, including the procedural efficiency of having one such enquiry. Applying the test established by the Court of Appeal in PJSC Commercial Bank Privatbank, the general test of expediency is satisfied. However, the Article 34 test is specific in requiring expediency “to avoid the risk of irreconcilable judgment resulting from different proceedings.” That is not so straightforward on the facts of these proceedings because the risk of irreconcilable judgments will not be obviated by the stay. It seems to be the Defendants’ working assumption that the Nigerian Court should deliver judgment first, with a view to then lifting the Article 34 stay on the English proceedings. That will not avoid the risk of irreconcilable judgments because, although the English court would afford due attention and respect to the findings of the Nigerian courts, the findings of the Nigerian courts in the FEA and the other actions would not bind the English court to make equivalent findings even on the most basic matters such as whether the December 2011 Spill reached land. In practice, therefore, the risk of irreconcilable judgments would remain, though it might be somewhat reduced if the English court waited until after the Nigerian courts had given judgment. However, in the light of the ruling by the Court of Appeal that expediency is a theoretical concept, I will proceed on the assumptions (without deciding) that, for the purposes of Article 34, (a) the actions in Nigeria are related actions and (b) it is expedient to determine the related actions together to avoid the risk of irreconcilable judgment resulting from different proceedings.

It is common ground that, when considering whether a stay is necessary for the proper administration of justice, the court should have regard to Recital 24 of the Regulation, which I have set out above at [220]. Taking the elements of Recital 24 in turn:

In PJSC Commercial Bank Privatbank at first instance ([2018] EWHC 3308 (Ch)) Fancourt J considered whether a stay was necessary for the proper administration of justice. He noted at [54] that this “overlaps with the discretion implicit in the phrase ‘the court of the Member State may stay the proceedings’” in Article 34. He then said:

“Given the separate criterion under Article 34 that a stay is necessary for the proper administration of justice, it may be that there is no such strong presumption of a stay as there is in the case of another Member State where Article 30 applies. Nevertheless, the conclusion that the proceedings are sufficiently closely related to make it expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments does point in the direction of granting a stay, subject to the satisfaction of the other two criteria.”

Subject to one gloss, I respectfully agree. The gloss is that the lower the bar is set for the expediency test, the less strong the pointer for the purposes of the separate criterion that a stay is necessary for the proper administration of justice. If, for example, the alternative interpretation of the expediency test had been adopted, so that it was only satisfied if it was feasible to consolidate or hear the actions together and it was regarded as desirable to do so, that would be a relatively strong pointer to the outcome of the “proper administration of justice” test. Where, however, the expediency test may be satisfied on the theoretical basis that it would be desirable for there to be consolidated or simultaneous hearings but there is no practical prospect of a single hearing happening, the pointer is relatively weak because the “proper administration of justice” should concentrate on what is feasible and practical rather than on what is only theoretical.

Balancing these various considerations together, I am not satisfied that a stay is necessary for the proper administration of justice. I start with the fact that jurisdiction is based on Article 4 and that it is contemplated that the proceedings against STASCO may continue after a temporary stay to await the progress of the Nigerian actions. Second, the length of that stay is indeterminate whether one looks at the FEA or the other actions; but on any view it is likely to be measured in years rather than months, thereby rendering these Claimants’ claims (which were issued late) almost intolerably stale. Third, a stay would prevent any steps being taken towards the resolution of the difficult limitation and other issues which the earlier parts of this judgment identify; and it would prevent any other steps being taken to ensure the swift and just progression of the English action if and when the stay is removed. That is, in my judgment, a major drawback: if and to the extent that there are valid (i.e. not statutebarred) claims to be pursued, there is a compelling interest of justice in their being pursued quickly. Otherwise, as is well known, there is a risk that valid claims may fall by the wayside simply because of the exorbitant passage of time. Fourth, although the factual connection with Nigeria is almost complete, the English court’s jurisdiction is not to be ousted on forum non conveniens grounds and, that being so, there is no reason to assume that imposing a stay until after the Nigerian courts have reached their conclusions will either cause the English proceedings to be abandoned or determine the outcome of the English proceedings or eliminate the risk of irreconcilable findings altogether. I am certain that the English court would and will, if no stay is imposed at this stage, remain vigilant to the need to respect the Nigerian courts and their proceedings; and I do not exclude the possibility that circumstances might arise at a later stage when a pause in the English proceedings might become desirable in the interest of judicial comity and respect for Nigeria’s sovereign legal system. Fifth, I bear in mind the fact that the scope of the FEA action is not clear, so that it is not clear what issues will be determined, save that the issue of STASCO’s responsibility and actions will not be as they are not before the Nigerian Court. Turning to the other actions, STASCO is only a party to the HRH Victor Disi Action which, though technically pending, cannot be assumed to be certain to come to trial.

These same considerations would lead me to refuse to exercise my discretion to impose a stay on the proceedings at present. Although there is significant overlap with the issues raised in the actions now before the Nigerian courts, it is far from complete. A consolidated hearing is not possible, which the Court of Appeal in PJSC Commercial Bank Privatbank described as a compelling reason for refusing a stay in the absence of some strong countervailing factor: see [225] above. The circumstances of the present case are not the same as those in PJSC Commercial Bank Privatbank so that it could be argued that the observations of the Court of Appeal have relatively less force in present circumstances. However, at its lowest, I would accept that the Defendants’ application would be stronger if consolidation or hearing actions together had been feasible.

The application for a stay of proceedings against STASCO is therefore refused.

I have set out the criteria that have to be satisfied and the principles to be applied at [213]-[217] above. And I have already concluded that:

Applying the principles summarised at [215] above, I conclude that it is reasonable for the English court to try the issue against STASCO for two main reasons. First, jurisdiction is founded on Article 4 and the main arguments that might be raised against trying the issue in England are essentially forum non conveniens arguments that are inadmissible. Second, it is not obvious that any of the Nigerian cases will proceed to an examination of STASCO’s role or legal responsibility for the December 2011 Spill.

That leaves the question whether England is the proper place to bring the claim against SNEPCO. Applying the principles outlined at [217] above, I conclude that it is. First, the claim against STASCO will be continuing in any event. That would, in my judgment, be sufficient reason in itself because, to transpose words from a different context, it is expedient for there to be one enquiry and feasible to achieve it by STASCO and SNEPCO being parties to the English proceedings. As the Claimants submit, STASCO is alleged to be responsible for one end of the loading operation and SNEPCO is responsible for the other. Having both parties before the Court therefore allows a full enquiry into and understanding of what happened and where legal responsibility should lie. In addition, although there is substantial factual and litigation connection with Nigeria, the balance is not all on one side since some or all of STASCO’s witnesses (both expert and of fact) are likely not to be Nigerian.

I therefore conclude that the necessary criteria are satisfied and find that the court has jurisdiction over SNEPCO. As already indicated, this conclusion is subject to my conclusions on limitation issues earlier in this judgment. If and to the extent that the claim against STASCO falls away for limitation reasons, the first prerequisite for jurisdiction over SNEPCO also goes.

The principles are very well known and have been frequently reiterated, typically in the context of the obtaining of an injunction or an order to serve proceedings out of the jurisdiction.

In Brink’s Mat Ltd v Elcombe [1988] 1 WLR [1350] at 1356F Ralph Gibson LJ summarised the principles as follows:

“(1)

The duty of the applicant is to make “a full and fair disclosure of all the material facts:” see Rex v. Kensington

Income Tax Commissioners, Ex parte Princess Edmond dePolignac [1917] 1 K.B. 486, 514, per Scrutton L.J.

(2)

The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v.Kensington Income Tax Commissioners, per Lord CozensHardy M.R., at p. 504, citing Dalglish v. Jarvie (1850) 2 Mac. & G. 231 , 238, and Browne-Wilkinson J. in Thermax Ltd. v.Schott Industrial Glass Ltd. [1981] F.S.R. 289, 295.

(3)

The applicant must make proper inquiries before making the application: see Bank Mellat v. Nikpour [1985] F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.

(4)

The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J. of the possible effect of an Anton Piller order in Columbia Picture Industries Inc. v. Robinson [1987] Ch 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade L.J. in Bank Mellat v.Nikpour [1985] F.S.R. 87, 92–93.

(5)

If material non-disclosure is established the court will be

“astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure … is deprived of any advantage he may have derived by that breach of duty:” see per Donaldson L.J. in Bank Mellat v. Nikpour, at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioners';case [1917] 1 K.B. 486, 509.

(6)

Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the nondisclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

(7)

Finally, it “is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:” per Lord Denning M.R. in BankMellat v. Nikpour [1985] F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.

“when the whole of the facts, including that of the original nondisclosure, are before [the court, it] may well grant … a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:” per Glidewell L.J. in Lloyds Bowmaker Ltd. v.Britannia Arrow Holdings Plc., ante, pp. 1343H–1344A.”

In Kazakhstan Kagazy PLC and ors v Baglan Abdullayevich Zhunus and ors [2013] EWHC 3618 (Comm), HHJ Mackie QC provided a tour of relevant principles and authorities in the course of which he addressed the question of materiality at [27], citing Brink’s Mat:

“The test for “materiality” of a matter not disclosed (or misrepresented) is whether it was relevant to the exercise of the Court's discretion: a fact is material if it would have influenced the Judge when deciding whether to make the Order at all or in deciding upon the terms in which to make it: …”

At [30] he cited from the judgment of Mr Alan Boyle QC in The Arena Corporation

A similar emphasis on the need to retain a sense of proportion was provided by Toulson J in Crown Resources AG v Vinogradsky & Ors (unreported 15 June 2001 and cited by HHJ Mackie QC at [32]):

“Secondly, where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion.” (page 6)

“I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees.” (page 7)

“In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion.” (page 24)

A succinct summary was provided by Christopher Clarke J in Linsen International Ltd v Elspeth Shipping Corporation [2010] EWHC 303 (Comm):

“Whether or not such a sanction should be imposed depends on the circumstances including

(a)

the seriousness of the breach;

(b)

whether it was intentional, or resulted from indifference, inadvertence, or a thought-out but erroneous decision;

(c)

whether disclosure would have made any material difference to the outcome of the application;

(d)

whether the material before the Court taken as a whole makes it inequitable to continue or renew the order (in which case any question as to the effect of ?non-?disclosure is likely to merge with the question whether, in the light of all the material the injunction should be continued);

(e)

general considerations of equity.”

I respectfully agree with and adopt these statements of principle.

The Defendants submit that the Claimants’ application to serve SNEPCO out of the jurisdiction was made ex parte on 29 June 2018 and led to the order of the Court which was dated 9 July 2018. The application was supported by the first witness statement of Mr Ekhorutomwen. The Defendants submit that the Claimants failed to make full and frank disclosure in two material respects, namely:

It is not disputed that the facts upon which the Defendants now rely were not disclosed to the Court. The questions to be answered are therefore:

The Claimants submit that RDS and STASCO were represented at the hearing on 29 June 2018 by Debevoise & Plimpton who now act for SNEPCO as well. In my judgment, this makes the point for which the Defendants contend: SNEPCO was not represented. Nor had it been served with the application. SNEPCO was not represented at the hearing and had not been served with the application. The fact that other Defendants were represented is beside the point, even if the solicitors who represented the other Defendants on 29 June 2018 later came to act for SNEPCO as well.

The position was made entirely clear in advance by a letter that Debevoise & Plimpton wrote to the Claimants’ solicitors on 25 April 2018 stating that they acted for RDS. Referring to the future hearing of the application to serve out, Debevoise & Plimpton wrote:

“We will not take the liberty of commenting on the substance of the Learned Judge’s order, or his case management decision to adjourn the application for service outside the jurisdiction, not least because the order relates to what are formally ex parte proceedings which concern an application to serve SNEPCo. The question of jurisdiction over SNEPCo is a matter for that company.” [Emphasis added]

That letter made clear that Debevoise & Plimpton were not representing SNEPCO in relation to the application to serve out. Nothing happened thereafter to change that position in relation to SNEPCO, though Debevoise & Plimpton also represented STASCO on 29 June 2018. The position is put beyond argument by the terms of the court’s order made after the hearing which records that Counsel appeared for the Claimants, RDS and STASCO but does not record any attendance for SNEPCO.

I therefore find that the application was made and determined ex parte, so that the Claimants owed to SNEPCO the obligation of full and frank disclosure as generally owed in such circumstances.

The Claimants must have been aware of the fact of the amendment to join STASCO even if they didn’t think to mention it on the application to serve out. The Claim Form had been amended on 4 April 2018; and the application to serve out was issued one week later supported by the witness statement of Mr Ekhorutomwen which he had made two days earlier, on 9 April 2018. The Witness Statement exhibited the Claim Form, which must have been as amended to join STASCO. That Claim Form said on its face that it had been “amended on 4 April 2018 pursuant to CPR 1998 Part 17 rule 17.1”. If the Court had been astute to note that endorsement it would have carried the positive implication that the claim against STASCO was not statute barred on that date.

The Claimants submit that the non-disclosure of the late amendment to join STASCO could not have been a breach of the duty to make full and frank disclosure of material

However, I think that the Defendants put their case too high on the question of limitation. The Claimants now assert that, even if some may have been statute barred by April 2018, others had not suffered damage by then and so were not. This leads back directly to the structure of these proceedings as a collection of 27,000 individual claims and the fact that the Court is not even now in a position to form a concluded view on limitation: see [59] above.

I therefore do not accept that the Claimants should have provided information to the Court about limitation in the terms for which the Defendants contend. Rather, if they were to say anything, they could reasonably have said that, although the limitation period was six years, the cohort of Claimants was so large and their circumstances so disparate that there would be some who were not statute barred by the time of the issuing of these proceedings, the amendment of the claim form or the determination of the application to serve out.

Turning to the existence of the Nigerian actions, Mr Ekhorutomwen’s evidence is that he made enquiries in 2013 which did not reveal the existence of other actions but that he did not repeat his enquiries thereafter. There is a dispute about whether he knew of some or all of the Nigerian actions, which it is not necessary to resolve. He was told by SIL on 7 December 2017 of the existence of “several proceedings on foot in Nigeria”; and I am confident that reasonable enquiries would have revealed the existence of the FEA and, probably, of some or all of the other Nigerian actions as well.

However, on the findings made and conclusions I have reached in this judgment, if the Claimants were going to address this issue at all, what they could and should have said was that (a) jurisdiction against STASCO was founded on Article 4, (b) some of the actions had been struck out even if they were still technically pending, (c) the FEA was not concerned with the role of STASCO, (d) the HRH Victor Disi action was the only Nigerian action to which STASCO was a party and did not appear to be set up in any sense as a “lead” action, (e) the claim against STASCO was likely to be pursued in any event, and (f) SNEPCO was a necessary or proper party to the English proceedings.

For these reasons I am not satisfied that there was any obligation upon the Claimants to make the disclosures for which the Defendants contend. And, if they had made the more limited disclosures that I consider would have been reasonable, they would not (either singly or in aggregate) have caused the Court to make an order on the application to serve out that would have been different from the one it in fact made.

I therefore reject the application to set aside the order for service out on SNEPCO.

The conclusions I have reached in this judgment have far-reaching implications for the future conduct of this action. The major outstanding problem is how to cope with the possibility that the limitation period may not have expired for some (and possibly many) Claimants when they took the critical procedural steps that are the subject of this judgment. That problem raises questions about the structure of this “representative” action and how to determine whether there is a substantial cohort of Claimants who should be allowed to proceed forward to trial. Of one thing I am certain: it would not be acceptable to proceed to a full trial of this action in circumstances where my rulings in this judgment seem inevitably to mean that some (and possibly many) Claimants are bound to fail for reasons associated with limitation. It is also to be remembered that, while I have necessarily assumed in this judgment that the relevant period of limitation under Nigerian law is 6 years, there is a live issue (which is entirely dependent on expert evidence) about whether the proper period is 5 years.

I have not heard argument on consequential orders, but the effect of my conclusions on the various issues appears at present to be as follows:

I direct that there shall be a further half-day hearing after hand-down of this judgment to address (a) the “representative” nature of this action and whether its structure needs to be adjusted; (b) how to determine which Claimants can and cannot go forward to a trial in the light of the findings I have made in this judgment; and (c) any other consequential orders.

My present and provisional view is that the following steps need to be taken:

I will hear counsel on all consequential matters before reaching a concluded view and giving further directions. I thank them for their assistance thus far.