The tort of private nuisance and the importance of limitation periods

In earlier editions of this update,¹ we reported on the decisions of the High Court² and Court of Appeal respectively³, in the case of Jalla v Royal Dutch Shell Plc (Jalla). The claim was brought against Shell by way of a representative action on behalf of over 27,500 claimants who each sought damages arising from an oil spill that occurred off the Nigerian coast on 20 December 2011. Whilst the earlier decisions in Jalla concerned the representative action element of the claim, a further central issue in dispute was when the claimants’ cause of action in nuisance was alleged to have accrued.

 

What is the tort of private nuisance?

The tort of private nuisance generally refers to “where the defendant’s activity, or state of affairs for which the defendant is responsible, unduly interferes with…the use and enjoyment of the claimant’s land”.⁴ The tort is only actionable if there is proof of damage.

 

The Claim in nuisance

The claimants issued their claim on 13 December 2017, just inside the 6-year limitation period for tort under English law. In 2018 and 2019, the claimants issued several applications seeking to amend the Claim Form and Particulars of Claim. The defendant argued that the amendments, which included substituting one of the defendant companies, were out of time (limitation having ended in December 2017) and should be refused.

The claimants argued that the presence of the oil on their land constituted a continuing nuisance, meaning that for each day oil remained present, the cause of action freshly accrued, and therefore limitation had not expired.

The High Court and Court of Appeal rejected the claimants’ argument. The claimants appealed to the Supreme Court. On 10 May 2023, the Supreme Court dismissed the appeal.

 

Supreme Court Judgment

In considering the claimants’ submission that the presence of oil on their land was a continuing nuisance on the facts, the Court analysed the concept of continuing nuisance and acknowledged the difficulty that, as a matter of ordinary language, the continued presence of an interference or damage on a person’s land could be described as a “continuing problem”. However, in the legal sense, the concept of continuing nuisance is different. In general terms, continuing nuisance refers to a repeated activity of a defendant or ongoing state of affairs for which the defendant would be responsible, and which causes “continuing undue interference with the use and enjoyment of the claimant’s land”.⁵ This interference can be in tangible form (such as roots from a tree), or intangible form (such as noise, fumes and smells).⁶

The Supreme Court and the courts below held that an oil leak, which was quickly repaired, was a one-off event. There was no repeated activity or ongoing state of affairs for which Shell was responsible and which caused a continued undue interference with the use and enjoyment of the claimants’ land. The cause of action in nuisance accrued and completed once the oil reached the shore and affected the claimants’ land. There was accordingly no continuing or fresh cause of action for the period that the oil remained on their land.⁷

That said, in making its decision, the Supreme Court did not accept the Defendant’s argument that there could be no continuing nuisance purely because the defendant had no control over the continuation of the nuisance once the oil reached the claimants’ land. The Court confirmed that, whilst it will almost always be present in cases of continuing nuisance, continuing control is not a necessary requirement, as a person who created and had control of the nuisance at the time of creation may still be sued, irrespective of whether that person still has control.⁸ By way of illustration, where a defendant builds a house that interferes with a claimant’s rights, the defendant remains liable even if it no longer has access to the property and therefore cannot redress the wrong. However, in such cases the nuisance would not be a one off event, as was adjudged to be the case here.

 

Comment

Had the claimants' argument been accepted, this would have potentially extended the limitation period indefinitely. The Court recognised that this would undermine the law on limitation and would also have given rise to significant difficulties in assessing damages.⁹

With an increasing focus on environmental, social and governance claims against businesses, this decision brings welcome clarity and assurance for those who face actions of this kind. However, it is also vital that, when businesses suffer environmental incidents such as these, prompt action is taken to halt the cause (nuisance). This should crystalise the claim for limitation purposes, and mitigate the harm caused to, and the level of damages sought by, affected parties.