A continuous environmental problem is not always a continuous nuisance, the Supreme Court says

Recently, the Supreme Court issued its ruling on Jalla and another (Appellants) v Shell International Trading and Shipping Company and another (Respondents) [2023] UKSC 16.

In a nutshell, the claimants argued that a massive oil spill that occurred in 2011 constituted a continuing nuisance as the oil was never cleaned, but the Supreme Court disagreed with that interpretation and considered that the 6-years limitation period for the action had already expired, so it dismissed the claim. This is the first time that the English courts have ruled over a continuing nuisance caused by a one-off event.

While the case revolved around the tort of nuisance, the ruling has important implications for other claims in environmental matters.

Background

A major oil spill occurred off the coast of Nigeria in December 2011 during a cargo operation at an offshore installation in the Bonga oil field operated by the Shell group. At least 40,000 barrels of crude oil leaked into the ocean. This is alleged to have been the largest oil spill in the Niger Delta region for over twenty years.

The claimants and appellants are two Nigerian citizens that owned land in the Nigerian Atlantic shoreline, which was impacted by the oil spill. The claimants alleged that the oil on their land was not removed or cleaned up, so the undue interference with their land (presence of oil) is continuing and constitutes a continuous nuisance.

The defendants, companies within the Shell group of companies, were sued in England as they were English domiciled companies. It was common ground that English law would be the applicable law.

The High court rejected the claimant’s argument in 2020 and the Court of Appeal dismissed the appeal in 2021. The Claimants appealed the case to the Supreme Court.

Supreme Court’s ruling

The Supreme Court unanimously rejected the appeal.

The Supreme Court started its evaluation by providing that there is no prior case in English law that had decisively rejected or accepted the argument put forward by the claimants regarding the creation of a continuing nuisance by a one-off event. While three cases of the highest court were focused on in the claimants’ submissions, these did not address the matter directly.

The general concept of a continuing nuisance 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 is why an injunction is the most commonly given remedy in nuisance cases.

The Supreme Court also raised the following three additional points regarding continuous nuisance:

• Continuing nuisance is no different from any other continuing tort or civil wrong.
• Damages at common law for a continuing nuisance cannot be recovered for causes of action (ie for past occurrences of the continuing nuisance) that accrued more than six years before the claim was commenced.
• The concept of the defendant “continuing” a nuisance (where, with actual or presumed knowledge of the continued state of affairs, the defendant does not take reasonable steps to end it) is different from the concept of “continuing” of the nuisance (where there is a continuing cause of action).

The Supreme Court’s reasoning was that in this particular case there was no continuing nuisance because “outside the claimant’s land there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land.” 

The oil leak that lasted for six hours constituted the activity that caused the nuisance. After the leak was fixed, there was no other activity from the defendants causing a nuisance and the cause of action accrued and was complete once the claimants’ land had been affected by the oil.

Another reason for rejecting the claimant’s argument was that accepting it would have the following problematic consequences:

• Undermine the law on limitation of actions as it would extend the running of the limitation period indefinitely until the land is restored.
• Transform the tort of private nuisance into a failure by the defendant to restore the claimant’s land.
• Produce difficulties for the assessment of damages, which are, in general, to be assessed once and for all.

Finally, the Supreme Court also discussed whether it was necessary for the defendant to have control over the continuing nuisance and concluded that this is not indispensable. The court referred to Thompson v Gibson (1841) 7 M & W 456, where the person who created the nuisance remained liable to pay damages even after that person had sold the building that was causing the continuous nuisance.

What does this mean for environmental claims?

The arguments provided by the Supreme Court are sound, but its interpretation of what should be considered a “continuing nuisance” is problematic from an environmental perspective.

While the tort of nuisance is far-reaching enough to deal with environmental pollution at a landowner’s property, it was originally created to deal with other matters like noise, fumes or flooding.

Taking a noise nuisance as an example, if the activity on the defendant’s land that is causing the nuisance (i.e. loud music played at night) is stopped, then the effects of that nuisance in the claimant’s land (i.e. loud sounds heard at night) will also stop. However, this is not the case for environmental pollution. 

As shown in the Jalla v Shell case, the activity on the defendants’ land causing the nuisance could be stopped (i.e. oil leak), but the effects of that nuisance in the claimant’s land can remain in place for years (i.e. contaminated soils) and could even have latent impacts that are not foreseeable at the time the nuisance took place (i.e. future health issues of the claimants).

For those reasons, the tort of nuisance is ill-equipped to deal with environmental issues and has not been commonly used to deal with these issues.

The Supreme Court’s ruling adds a layer of complexity for using the tort of nuisance to deal with environmental pollution as it emphasised that a continuous nuisance only occurs if there are repeated activities or a or an ongoing state of affairs that is located outside the claimant’s land. As per definition, a nuisance claim is only viable if it affects the claimant’s property, so the claim can only be issued after the claimant’s land has already suffered environmental pollution. 

A claimant will continuously suffer the effects of the environmental pollution on its land but, based on this ruling, it can only issue a claim if it is within the last 6-years (as per the limitation period) since the activity outside its land occurred, disregarding whether the effects still persist.

Importantly, this interpretation of what is “continuous” also extends to other torts such as negligence, trespass, or breach of statutory duty as the Supreme Court provided that “continuing nuisance is no different from any other continuing tort or civil wrong”.

Despite the above, the Supreme Court hinted that there might have been a way for the claimant in Jalla v Shell to raise the claim even after 6 years from the oil spill occurred. The claimants’ argument based partly on Darley Main Colliery Co v Mitchell (“Darley”) (1886) 11 App Cas 127, Sedleigh-Denfield, and Delaware Mansions. On this point, the Supreme Court provided the following:

“While it can be said that, similarly to the oil spill, the excavation had gone on outside the claimant’s land, in the sense that the defendants were exercising rights as lessees of a seam of coal underneath the claimant’s land, it was crucial in that case that there was fresh damage caused, that is separate and different subsidence of the claimant’s land, at the later date in 1882. But it was no part of Mr Seitler’s case that the oil caused separate and different damage to the claimants’ land. Rather his submission was that there was a continuation of the same interference by reason of the oil still being on the claimants’ land. Nor did he (or could he) submit that there remained any causative state of affairs offshore, once the leak had been stopped.”

In conclusion, civil tort claimants dealing with environmental pollution should be careful with how “continuing” will be interpreted from now on. It doesn’t matter if the environmental problem in the claimant’s land is continuous. What matters is if the actions from the defendants or the ongoing state of affairs outside the claimant’s land has continued or not. If this cannot be proved and the 6-year period limitation has expired, then the claimant would need to show that the pollution has caused a separate and different damage to their land.

How we can help

For more information about Irwin Mitchell's Environmental services, please visit our website.