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Oil still present on claimants’ land not a “continuing private nuisance” according to the UK Supreme Court in the ongoing Jalla v Shell litigation

For the second time this year, the Supreme Court has given guidance on the tort of private nuisance. Following the decision in Fearn [1] (which we wrote about in our recent article) on what can constitute a nuisance, in Jalla v Shell [2] the Supreme Court has considered the question of what constitutes a “continuing” private nuisance.

The issue in Jalla was whether the ongoing presence of oil on the claimants’ land could constitute a “continuing” private nuisance, or whether the nuisance is limited to the event of the original oil spill in 2011. This had important consequences for limitation: a continuing cause of action could arise from a continuing nuisance so that the limitation period runs afresh from day to day.

Dismissing the appeal, the Supreme Court unanimously found that the ongoing presence of the oil was not a continuing private nuisance.

The case is of interest to those following environmental litigation, anyone interested in legal rights over land, and more broadly as a reminder of the importance of limitation periods.

Basis for the appeal

The claimants’ private nuisance claim alleges damage has been caused to their land by oil originating from a spill that occurred in the Bonga oil field off the coast of Nigeria in December 2011. The claimants issued their claim form in 2017 shortly before the expiry of the six-year period following the spill (six years being the standard limitation period for tortious claims under English law). The claimants subsequently sought to amend their claim in 2018, by which time more than six years had passed since the oil spill. The defendants argued that permission to amend should be refused, as the amendments were outside of the limitation period. The claimants argued that their amendments were not time barred because the oil was still on their land, and thus there was a continuing nuisance; the cause of action therefore accrued afresh every day that the oil was not cleaned up.

Decision of the Supreme Court 

The Supreme Court dismissed the appeal and upheld the reasoning of the lower courts. Lord Burrows’ judgment notes that the ordinary meaning of the words “continuing nuisance” may cause confusion. It is quite natural to describe the ongoing presence of the oil as a continuing nuisance, but that does not mean that it is a continuing nuisance in the legal sense.

 A continuing nuisance in law is one where “outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible, which causes continuing undue interference with the use and enjoyment of the claimant’s land”. This explains why an injunction is an appropriate remedy for the tort of private nuisance: an injunction can be granted to prevent the repeated activity by the defendant or stop the ongoing state of affairs.

The Supreme Court found that the Bonga oil spill was a one-off event. The cause of action was “complete” once the land was affected by the spill, rather than continuing until it is cleared. There was no ongoing state of affairs or repeated activity for which the defendants were responsible because the oil pipe (which was outside the claimant’s land) was no longer leaking and the oil had already reached the claimant’s land. To accept the claimants’ arguments would mean that the limitation period for nuisance would run until the land is restored, which would undermine the law on limitation. It would also significantly change the nature of the tort of private nuisance into a failure by the defendant to remediate the situation.

Key takeaway

In private nuisance, for the nuisance to be “continuing”, the continuing interference with the claimant’s land must be caused outside the claimant’s land by repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible. For example, in Fearn, the overlooking from visitors to the Tate Modern gallery into private residences that constituted the nuisance was happening regularly.

 

[1] Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 (01 February 2023) (bailii.org)

[2] Jalla and another (Appellants) v Shell International Trading and Shipping Co Ltd and another (Respondents) (supremecourt.uk)

The Supreme Court determined that while it would be natural to describe the presence of oil on the claimants’ land as a continuing nuisance, this would be “misleading” and an over-extension of the law.

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