In Alame, the Defendants agreed in principle that a segment of the claims should be managed via a GLO, but contended that a GLO was premature as the common issues had not yet been agreed or ordered. The Defendants argued that the Claimants needed to provide details of the particular oil spill that caused harm to each individual claimant (e.g. the date of the spill) in order to determine whether the spill in question was from a Shell pipeline, or another source, particularly because there had been a number of sources of spills in the area. The Defendants contended that the "spill-by-spill" particularisation was required because of the widespread oil pollution in the Niger delta: for the Claimants to succeed they would need to demonstrate that the alleged harm was caused by the Defendants, as opposed to another pipeline operator or another third-party. This would be a crucial part of any case the Defendants had to answer as the Claimants would need to prove the causative link between the alleged acts/omissions by the Defendants and any harm suffered by the Claimants. Accordingly, without an appropriate level of particularisation, the Court would not be in a position to determine what the common issues were and, therefore, make a GLO.
The Claimants argued that such particularisation would be disproportionate and, in any event, not feasible until after disclosure and expert evidence. They further argued that the level of particularisation required need only be enough for the Defendants to understand the nature of the case they were to meet: the Defendants did not need the additional particularisation sought to meet this standard and were simply creating an unnecessary hurdle for the Claimants in order to increase their costs.
The Court found for the Defendants, ordering the Claimants to provide certain additional particularisation for each individual Claimant and postponing the GLO determination until after the Claimants had done so. The Court found that the framing of the claims by the Claimants with a view to the Court making a GLO did not automatically release the Claimants from their obligation to provide details of the facts relied on in each individual case to establish a cause of action. The Court expressly acknowledged that complying with this level of particularisation would be time-consuming and expensive, but reasoned that it was necessary to ensure that the material issues in dispute could be identified and determined in the trial of the lead claimants.
In making this order, the Court made clear that the GLO regime cannot be used to obscure key elements of a claim such as the causative link between an act/omission and harm: whilst claimants under a GLO can plead their claims in short or general terms, the Court will still require them to provide a level of detail necessary to establish the material facts relied upon and the cause of action to which they relate. In practice, this is likely to require significant investment of time and cost by the Claimant legal team (as acknowledged by the Court in Alame) and may be a difficult exercise.
Jalla v Shell International Trading [2021] EWCA Civ 1389
Whilst the Alame claim is in its relative infancy, a similar claim, Jalla, shows how preliminary procedural hurdles can be highly problematic for claimants. Jalla relates to a single major oil spill of over 40,000 barrels that occurred in 2011 in the Bonga oil field located 120km off the coast of Nigeria. Shell operated facilities in the oil field whereby crude oil could be offloaded from storage points to oil tankers. In December 2011, as oil was being loaded onto a tanker, a spill occurred. The oil from the spill reached the mainland several days later, allegedly causing significant environmental damage including harm to farming, fishing, the mangrove forest and drinking water supplies. The claimants have sought to bring a number of claims under the Representative Action rules (for more on this, see Figure 2).
Jalla has had a long and difficult history. Procedural challenges have reached the Court of Appeal on three occasions, with the Defendants succeeding each time. Judges have expressed their frustration with the claimants' approach, calling it "iterative" and facing "death by a thousand cuts". Without going into the procedural history of the claims in detail, in short, the Claimants (i) issued the claims right on the limitation period cut-off and (ii) initially sued the wrong Defendant. This combination of issues has meant that the Claimants have needed to take novel approaches to keep the claims alive. (We have previously written about the limitation issues faced by the claimants in respect of the January 2021 continuing breach proceedings, which can be found here.)
One of the three procedural challenges that reached the Court of Appeal is particularly relevant for this article, namely the question of whether the claims could proceed as a Representative Action under CPR r 19.6. The Court of Appeal determined in September 2021 that they could not.
By way of background, the original claim form issued in December 2017 identified the Claimants as two Nigerian individuals "and others" (the "Original Claimants"), with no reference to a Representative Action or CPR r 19.6. When the claim form was served on 4 April 2018, it was amended to state that it was brought by the two individuals "for themselves and on behalf of the Bonga Community". A week later, when the particulars of claim were filed and served, the claim was for the first time expressly stated to have been brought pursuant to CPR r 19.6 (which relates to Representative Actions) and identified 27,800 individuals and 457 "communities" in the schedules to the particulars (the "Additional Claimants").
The Defendants argued that the amendments to the claim were very significant, principally because of the aforementioned limitation issues. In essence, they argued that the Additional Claimants had been added to the claim after the expiry of the 6-year limitation period, such that they had brought their claims out of time. The lawyers for the Claimants countered this by arguing that the "and others" reference in the original claim form was sufficient to invoke the Representative Action procedure under CPR r 19.6 and, therefore, the Additional Claimants were part of the initial claim. For this to work, the Claimants needed to argue that the Additional Claimants had the "same interest" as the Original Claimants, thereby invoking the CPR rule 19.6 procedure and that, consequently, their claims could be deemed to have been issued in 2017 with those of the Original Claimants.
At first instance, the High Court held that the Additional Claimants did not have the requisite "same interest" as the Original Claimants. It focused on the vast size of area affected by the spill and the divergence between the circumstances of the different individuals and groups that made up the Additional Claimants, determining that it was "obvious that individualised factual and causation defences will be raised in relation to all individual claimants … and all communities". The Court accepted that there was general commonality in aspects of their individual cases, but that this was insufficient to invoke the r 19.6 Representative Action process. The Court of Appeal agreed. It considered that, even if one of the two lead Claimants was successful in demonstrating that they had suffered a compensatable injury, the other Claimants would still need to prove the essential facts of their own claims and the court would still need to make an individual decision in relation to each claim. The Court of Appeal concluded that the claims were not, and never could be, a Representative Action. This left the Additional Claimants potentially without a remedy as this may be the end of the road for them.
The Wider Context
The Supreme Court, in its decisions in Vedanta and Okpabi, has allowed ambitious transnational claims similar to Alame and Jalla to overcome early procedural hurdles and gain traction in this jurisdiction. This has had a noticeable impact on the Courts' approach to other novel tort claims, particularly (i) the recently released Municipio De Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951, (ii) the Court of Appeal's decision of last year in Hamida Begum v Maran (UK) Limited [2021] EWCA Civ 326 (which we wrote about here) and (iii) the High Court's decision in Josiya v British American Tobacco PLC [2021] EWHC 1743 (QB) (which we wrote about here).
It may prove in due course that the hurdles imposed by the High Court in Alame may not be as difficult to overcome as those in Jalla. However it is worth noting that in both Alame and Jalla, the courts required the Claimants to substantiate their case theory in relation to causation: the courts will not relax the requirement that claims be properly pleaded just because that would be costly and difficult in practice. Depending on the resources available to claimants and where they are located, this may prove to be logistically challenging, and may have an impact on the overall economics of these types of claims.
We expect foreign-domiciled claimants to continue to make use of existing procedural mechanisms to advance multi-party claims in England, likely with the support of litigation funders. The Supreme Court's decisions in Vedanta and Okpabi are likely to continue to embolden claimant law firms to bring ambitious multi-party claims. However, such claims will continue to face significant procedural and logistical challenges of the type encountered in Alame and Jalla.
