Environmental Law News Update

January 13, 2025

Alame and others v Shell: Court of Appeal provide guiding principles on progressing a large environmental group litigation 

Starting a claim before having the evidence to prove your case is a risky endeavour. Yet that is the course the claimants – comprised of thousands of individuals in the Niger Delta – have taken in their long running litigation against multinational energy company Shell. In summary, the claimants allege that Shell and its Nigerian subsidiary company are responsible for dozens of oil spills resulting in extensive damage including water and ground contamination. The claim is based on ordinary principles of common law negligence, statutory breaches, nuisance, the rule in Rylands v Fletcher and trespass.

Whilst the causes of action may seem commonplace in an environmental claim, the concession by the claimants (all bar a minuscule proportion) that, at this stage, they cannot plead (let alone prove) their case, is far from conventional. Their position is that the defendants have information, which if disclosed would allow them to instruct appropriate experts and consequentially prove their case. The defendants advance that that they cannot provide further information unless the claimants plead their case with greater particularity.

It is in the context of that “circular procedural wrangle” that the latest judgment in the litigation was handed down by the Court of Appeal last month (Alame and others v Shell PLC and another [2024] EWCA Civ 1500, [80]).

There were two issues in the case. The first concerned two amendments to the claimants’ Particulars of Claim and have limited relevance to environmental law so won’t be reviewed any further other than to note that the amendments were lawful. The second issue concerned how large environmental group litigation claims are case managed.

In the High Court both May and O’Farrell JJ. had characterised the claims as “global claims”. Global claims, historically applied to construction disputes, allow a claim to succeed when loss is caused by multiple events, for all of which the defendant is responsible, but it is impossible or impracticable to identify what event caused a specific loss. The advantage is that it allows a claimant to succeed even though there are causation difficulties. The downside, however, is that if any material contribution to the loss is made by an event for which the defendant is not responsible the claim will fail.

It is important to note that the claimants specifically did not characterise their claim as a global claim but pleaded a more traditional basis that they would prove a link between their loss and a specific event for which the defendants were responsible. Nevertheless, against the claimants’ wishes May J. stated that she did not see any practical alternative other than to proceed the claims as global claims [42]. In the Court of Appeal, Stuart-Smith L.J. (with whom Males and Bean L.JJ. agreed) held for this reason alone the appeal would be allowed stating “No judge or court is entitled to require a party to establish their case by a particular method” [75]. The Court of Appeal recognised the problems that the claimants currently face on their chosen strategy but also recognised that it is a party’s prerogative to make that choice. The Court therefore allowed the appeal and expressed that the case should progress by reference to lead cases i.e. where a sample of the claimant group will proceed to trial, with common findings applying generally across the remainder of the claimants.

 

Going forward

The Court of Appeal recognised two major inequalities in favour of the defendants. Firstly, access to information and, secondly, access to financial resources. Whilst the Court of Appeal noted it is for the High Court to make case management decisions it offered three guiding principles for the future management of the litigation: 1) further disclosure is likely required; 2) lead cases should be selected by a collaborative process between the parties; and 3) once the claimants are in “possession of a sufficiency of relevant information” they should be required to re-particularise their case(s) so the defendants know what to contend with [86].