“8. It is well-documented that Nigerian crude oil is being stolen on an “industrial scale” in the Niger Delta, resulting in oil pollution and environmental degradation, the loss of lives and property and significant revenue losses to the public purse. For over a decade, the area surrounding Port Harcourt, including the Bille Kingdom, has been increasingly blighted by a surge in crude oil theft – known as “bunkering”
“Pending the provision of disclosure by the Defendants and obtaining expert evidence, the Claimants are unable to provide particulars of the dates or causes of the Unpublished Spills, not least for the reasons pleaded at paragraph 13(a) of the Reply.”
“8. To what extent (if any) and in what circumstances can a licence-holder be liable under the OPA for damage caused by oil that is removed from a licence-holder’s oil pipeline or ancillary installation by Third Party Interference and subsequently used in illegal oil refining by third parties? … 15. Does Nigerian law impose liability on an oil operator under the Petroleum Act and/or thePetroleum Drilling and Production Regulations 1969 for damage caused by oil that is removed from a licensee’s infrastructure by Third Party Interference and subsequently used in illegal oil refining by third parties?”
“The Bille Spills 1. What caused (i) the oil spills pleaded at paragraph 31 of the Bille Community Amended Particulars of Claim; and (ii) any Unpublished Spills (as defined in paragraph 13(a) of the Bille Community Reply) (the “Bille Spills”)? 2. What was the approximate volume of oil spilled in each of the Bille Spills and what geographical area was contaminated by oil as a result?”
“h. The particular oil spill or oil spills in relation to which each individual Claimant seeks compensation and/or damages or, if they are unable to provide such details, confirmation of the nature of the case they will rely on at trial. i. Where each individual Claimant says that he or she suffered damage (assuming that this location cannot be ascertained based on the individual’s address). j. When each individual Claimant claims that they were first impacted by oil from the particular oil spill.”
“4. Each of the Claimants has sustained loss and damage which was caused or materially contributed to by oil from the Bille Pipelines and Infrastructure … . 5. Each of the Claimants avers that they have sustained loss and damage which was caused or materially contributed to by one or more of the ten spills identified [in] the Amended Particulars of Claim, and/or one or more of the Unpublished Spills … . 6. Until such time as the Claimants are in possession of the Defendants’ disclosure and/or have obtained expert evidence, each individual Claimant is unable to particularise each specific spill or spills that caused or contributed to their loss and damage.”
“7. For the avoidance of doubt, the Claimants do not advance a “global claim”
“The failure to identify specific incidents of illegal refining is a further instance of the failure of identification which I have discussed above in relation to the state of the pleadings generally. Whilst the claim remains a global claim, as in practice I think it currently must be, then the general pleading of Shell’s responsibility for damage resulting from illegal refining is not objectionable on the ground of want of particularity; if and when particular events are sufficiently identified then that will necessarily require the identification of any relevant events of illegal refining, for which permission to amend will be required.”
“For now, therefore, I do not see any practical alternative but to view the cases of all bar the 5 Bille claimants as global claims unless or until a more particular case is identified…”
“Whilst the case is at its present stage of generalised allegations of breach and loss, where specific events are not tied to particular breaches, I do not see how fault-related disclosure can properly and sensibly be pursued without it ending up as a wide-ranging enquiry of all activity in the region over the pleaded period. I think that this would be wrong both as a matter of proportionality and because it would amount to a fishing exercise.”
“(1) The ‘cause of action’ is that combination of facts which gives rise to a legal right; (it is the ‘factual situation’ rather than a form of action used as a convenient description of a particular category of factual situation … (2) Where a claim is based on a breach of duty, whether arising in contract or tort, the question whether an amendment pleads a new cause of action requires comparison of the unamended and amended pleading to determine (a) whether a different duty is pleaded (b) whether the breaches pleaded differ substantially and (c) where appropriate the nature and extent of the damage of which complaint is made … (Where it is the same duty and same breach, new or different loss will not be [a] new cause of action. But where it is a different duty or a different breach, then it is likely to be a new cause of action). (3) The cause of action is every fact which is material to be proved to entitle the claimant to succeed. Only those facts which are material to be proved are to be taken into account; the pleading of unnecessary allegations or the addition of further instances does not amount to a distinct cause of action. At this stage, the selection of the material facts to define the cause of action must be made at the highest level of abstraction. … (4) In identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading … (5) The addition or substitution of a new loss is by no means necessarily the addition of a new cause of action … Nor is the addition of a new remedy, particularly where the amendment does not add to the ‘factual situation’ already pleaded …”
“(3) The purpose of the requirement at Stage 3 is to avoid placing the defendant in a position where he will be obliged, after the expiration of the limitation period, to investigate facts and obtain evidence of matters completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim. (4) It is thus necessary to consider the extent to which the defendants would be required to embark upon an investigation of facts which they would not previously have been concerned to investigate … At Stage 3 the court is concerned at a much less abstract level than at Stage 2; it is a matter of considering the whole range of facts which are likely to be adduced at trial … (5) Finally, in considering what the relevant facts are in the original pleading a material consideration are the factual matters raised in the defence … .”
“32. It is axiomatic that no one may be compelled to bring proceedings to claim damages for injury loss or damage caused by another person's tort. This has two consequences of fundamental importance. First, a person who is competent to litigate is entitled to decide who they will sue. Second, a person who is competent to litigate is entitled to decide what cause or causes of action they will pursue against those they have chosen to sue. The principle applies even (or particularly) where the choice that the claimant makes may expose them to a greater risk of failure than would be the case if every conceivable basis for a claim is pursued. This is not least because the overriding objective encourages claimants (and other litigants) to streamline proceedings where possible, in order to limit the number and complexity of issues to be tried by the court, and thereby to save expense and to generate litigation that is proportionate to the amount of money involved, the importance of the case, the (necessary) complexity of the issues and the financial position of the parties. 33. It follows that a decision to bring a claim for damages on a particular basis should in all normal circumstances be respected … .”
“The courts have developed a wide range of case management tools in group litigation including, importantly, the selection of lead cases, the trial of preliminary issues and the adoption of a staged approach, either in parallel with other progress in the litigation or as a stand-alone procedure. These operate in what is now a digitalised environment which includes sophisticated e-disclosure, data sampling and algorithm mechanisms.”