Case Management And Disclosure Implications Of Environmental Group Action Being Brought As “Global Claim” – Clean Air / Pollution

The High Court has determined questions of case management and
disclosure following on from its previous ruling (considered here) that group claims against Shell Plc and
its Nigerian subsidiary relating to oil contamination in the Niger
Delta must proceed as “global claims”, in light of the
claimants’ failure to identify the particular spills said to
have caused each claimant’s loss: Alame v Shell Plc [2024] EWHC 510
(KB).

The judgment is of interest for the decision that, so long as
the case is to proceed as a global claim, there cannot be a trial
of lead claims as would be typical in this sort of group
litigation. Instead, following a trial of preliminary issues
relating to principles of Nigerian law and statutory construction,
as well as the law and principles applicable to the concept of a
“global claim”, there will be a factual trial to examine
the causes of all oil contamination in the relevant region over the
period in question.

In relation to disclosure, the court emphasised that an
imbalance of information between the parties did not mean the
claimants had a right to broad disclosure, regardless of relevance.
Disclosure must be tethered to pleaded issues, and would not be
ordered solely on the basis that it might assist the claimants to
identify events that had caused individual losses: that would be a
classic fishing expedition.

However, despite this general approach to limiting disclosure,
the court also rejected the defendants’ position that, in
relation to reports and other documents they had agreed to provide
relating to oil spills, disclosure should be limited to known
incident numbers. That was too narrow, in circumstances where the
factual trial would need to focus on all oil polluting events in
the region in the relevant period, and where there was evidence
that the defendants’ monitoring of polluting events was
unreliable. Disclosure should therefore extend to material which
might point to other incidents.

Background

As explained in our previous blog post, linked above, the claims
relate to oil spills in two different areas in the Niger Delta, the
Bille and Ogale regions. The claimants allege that the defendants
failed to prevent, mitigate or remediate oil contamination
resulting from spills and thefts from their pipelines and
associated infrastructure, which caused damage to the
claimants’ land and communities. The defendants contend that
the contamination was caused in large part by theft and other
illegal activity by third parties for which they are not
responsible.

In a decision in November 2023, the High Court held that the
claims must proceed as “global claims” rather than
“events-based” claims, unless the claimants could plead a
more specific case as to which oil spills are alleged to cause each
claimant’s loss. At a further hearing in March, the court
considered the implications of that decision for case management
and disclosure going forward.

It was common ground that the Bille claims should be addressed
before the Ogale claims and that the first hearing, to be listed
over three weeks in January-February 2025, should be a preliminary
issues trial to determine principles of Nigerian law and statutory
construction affecting the Bille claims. The parties agreed a list
of 22 issues to be determined at that trial, but disagreed about
the inclusion of two further issues, relating to the concept of a
global claim.

The parties also disagreed about the scope of the factual trial,
to take place once the preliminary issues trial had concluded, and
the extent of the disclosure that should be given now in
preparation for the factual trial.

Decision

The High Court (Mrs Justice May) made various directions to
manage the claims going forward.

Preliminary issues trial

With regard to the preliminary issues trial, the judge held that
this should include the two issues relating to the concept of a
global claim, namely: whether this concept was a matter of
procedural or substantive law; and, if substantive, whether
Nigerian law recognises and applies the concept of a global claim
as it is understood in English law, ie that a claimant is bound to
recover nothing if it is established that a factor for which a
defendant is not liable made a significant contribution to the
damage. As the proper approach to causation could be determinative
of many of the claims, it made sense to argue it fully at an early
stage.

Lead claimants

The judge noted that the usual course in this sort of group
litigation is to identify lead claimants and to progress from
there. However, in this case, the lack of pleaded detail on
causation precluded any sensible identification of lead claimants
– though that could change in future, if appropriate
amendments were sought and allowed

Factual trial

It was effectively an “all-or-nothing” case, in which
the claimants were seeking to hold the defendants responsible for
all loss arising from oil pollution in the Bille region between
2011 and 2013. The factual trial which followed the trial of
preliminary issues would therefore examine all oil contamination in
the region in that period, so that the significance of particular
causes or events could be determined. This was broader than the
proposal put forward by the defendants, who considered that the
factual trial should focus only on the existence of causes of
pollution for which they were not responsible.

Disclosure

The judge rejected the claimants’ argument that, in light of
the “informational asymmetry” between the parties, the
defendants should be required to disclose all documents bearing on
their operations in the Bille region during the relevant period, so
that the claimants could identify particular polluting events and
particularise their case on causation.

As the judge commented: “An information imbalance is not a
sufficient reason to order disclosure, where relevance has not
first been established”; and “Relevance to pleaded issues
must be the touchstone”. Documents could not be disclosable
solely on the basis that they might have information which might
assist the claimants in identifying events that had caused
individual losses – that would be a classic fishing
expedition.

So, for example, the court refused to order broad disclosure, at
this stage, of documents relating to the defendants’ protection
of the pipeline, since no specific events of third party
interference causing loss had been pleaded.

However, the judge also rejected the defendants’ position
that, in relation to certain categories of reports and other
documents they had agreed to provide, disclosure should be given
only insofar as such documents could be searched for by known
incident number. In circumstances where the factual trial would
need to focus on all oil polluting events in the region between
2011 and 2013, and where there was evidence that the Joint
Investigation Visit reports (which were the first and main record
of any spill event) were unreliable, proper disclosure would
require the defendants to search not just for documents relating to
spills which had an incident number, but any material which might
point to other incidents. So, for example, to the extent that the
defendants’ asset monitoring reports indicated a breach and/or
spillage, they would be relevant and disclosable.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.