“each of the claimants avers that they have sustained loss and damage which was caused or materially contributed to by one of more of the spills identified [reference to the Annex or paragraph in each PoC] and/or one or more of the Unpublished Spills, as defined [in the relevant paragraph of the Reply]”
“the claimants in Bille and Ogale are…unable at this stage of the proceedings to identify which particular spills caused which claimants to suffer loss and damage…they intend to prove causation in due course with the benefit of disclosure and expert evidence”
“what, if any, are the consequences of the fact that most claimants are unable to specify at this juncture which particular spills caused what damage in a case in which any claimant who wishes to recover compensation, and they all do, accepts that they will be required to show that the damage they complain of was caused, or materially contributed to, by oil for which they can show the defendant is legally responsible.” (Emphasis added).
“35. Ordinarily, in order to make a relevant claim for contractual loss and expense under a construction contract (or a common law claim for damages) the pursuer must aver (1) the occurrence of an event for the which the defender bears legal responsibility, (2) that he has suffered loss or incurred expense, and (3) that the loss or expense was caused by the event. In some circumstances, relatively commonly in the context of construction contracts, a whole series of events occur which individually would form the basis of a claim for loss and expense. These events may inter-react with each other in very complex ways, so that it becomes very difficult, if not impossible, to identify what loss and expense each event has caused. The emergence of such a difficulty does not, however, absolve the pursuer from the need to aver and prove the causal connections between the events and the loss and expense. However, if all the events are events for which the defender is legally responsible, it is unnecessary to insist on proof of which loss has been caused by each event. In such circumstances, it will suffice for the pursuer to aver and prove that he has suffered a global loss to the causation of which each of the events for which the defender is responsible has contributed. Thus far, provided the pursuer is able to give adequate specification of the events, of the basis of the defender’s responsibility for each of them, of the fact of the defenders involvement in causing his global loss, and of the method of computation of that loss, there is no difficulty in principle in permitting a claim to be advanced in that way”
“The fact that one or a series of events or factors…caused or contributed (or cannot be proved not to have caused or contributed) to the total or global loss does not necessarily mean that the claimant..can recover nothing. It depends on what the impact of those events or factors is.”
“(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”
“(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. (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…”
“As regards Stage 3 (‘arising out of the same or substantially the same facts’) a number of points emerge, particularly from Ballinger at [34] to [38]: (1) “Same or substantially the same” is not synonymous with “similar”. (2) Whilst in some borderline cases, the answer to this question is or may be substantially a ‘matter of impression’, in others it must be a question of analysis. (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 approving defence…”
“I think the proper approach is to examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is the main plank, redress may be sought through the Fundamental Rights Rules…But where the alleged breach of fundamental right is incidental or ancillary to the main complaint it is incompetent to proceed under the rules.”
“But here, as in Turkur [an earlier case considering the court’s jurisdiction under the rules], the principal claim being wrongful termination of appointment which ought to have been commenced by a Writ of Summons which was not, then all of the claims principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. … Turning to the facts of the present case, there can be no difficulty in ascertaining the principal complaint of the respondent, which is a claim for wrongful dismissal. The principal relief is for his reinstatement which the court below ordered. The alleged breaches of his fundamental rights flowed from the main complaint. In the circumstances, therefore, the proper procedure for him to seek redress is by a writ of summons in the High Court and by application under the [1979 rules]”
“A cursory look at the claim filed in this case from the reliefs and the varying affidavits clearly shows that the appellants’ main grouse is about pollution generated from gas flaring. This without mincing words is a matter that cannot be knighted as a fundamental right action under Chapter IV…The fundamental rights to life and dignity of human person as prescribed in sections 33 and 34…are very clear, specific and identifiable. The issues of gas flaring, oil exploration and environmental impact assessment, which are the substantive complaint of the appellants in this case, are not issues of fundamental right. There is no legal craftsmanship found in this case that can weave them into fundamental rights to life and dignity of human persons under Chapter IV…The learned trial judge was therefore on the right path when he struck out this latter on grounds of incompetence.”
“…This focusses attention on what in my view is the single important difference between judicial review and civil suit, the differing time limits. To permit what is in substance a public law challenge to be brought as of right up to six years later if the relationship happens also to be contractual will in many cases circumvent the valuable provision of RSC Ord 53…that applications for leave must be made promptly and in any event within three months of when the grounds arose…” (at [17]) Jackson J went on to cite from the judgment of the Master of the Rolls in the same case: “If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating the proceedings.” (at [35]) Having described the situation pertaining to the option agreement Jackson J observed at [30] “The issues which the claimant seeks to raise are plainly public law issues and should properly be dealt with by judicial review proceedings under Part 54. The reason why the claimant has resorted to the Part 8 procedure is obvious. The claimant is seeking to circumvent the time limits contained in Part 54”
“In April 2001 it was plainly too late to begin proceedings under Part 24. The delay could not be justified on any of the recognised principles which apply in this jurisdiction. In those circumstances the claimant issued a Part 8 claim form against the council only, without joining the Secretary of State. The claimant’s proceedings are plainly an abuse of process. They are brought by an inappropriate procedure, solely for the purpose of circumventing the time limit. Those proceedings must be struck out”
“Speaking in the context of judicial review as a parallel remedy Lord Diplock warned against applications for constitutional relief being used as a general substitute for the normal procedures for invoking judicial control of administrative action…Lord Diplock observed that an allegation of contravention of a human right or fundamental freedom does not of itself entitle an applicant to invoke the section 14 procedure if it is apparent that his application is an abuse of process because it is made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right. In other words, where there is a parallel remedy constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court’s process…”
“My own belief is that, in the present context, the common law is not antipathetic to concurrent liability, and that there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.”
“The Claimants seeks damages arising as a result of serious and ongoing pollution and environmental damage caused by oil spills emanating from the Defendants’ oil pipelines and associated infrastructure in and around Bille Kingdom in Nigeria”
“29. In 2011 to 2013 a series of spills from the Bille Pipelines and Infrastructure resulted in the discharge of significant volumes of crude oil into the Creek (“the 2011-13 Spills”). 30. The repeated oil spillages have resulted in ongoing contamination to the natural environment…The harmful effects of the 2011-13 Spills include… 31.
“(e) As set out in Annex 3, the Second Defendant and/or NOSDRA have reported various other oil spills in and around Bille during the period between 2011 and 2013.”
“The Claimants reserve their position in relation to the cause and volume of each of the oil spills listed above and in relation to the other spills that occurred in and around Bille between 2011-2013 that were not publicly recorded by the Second Defendant”
“The Claimants seek damages, compensation and other relief in respect of the ten spills identified at paragraphs 31(b)-(d) of the Amended Particulars of Claim. However, these ten spills are not (and do not purport to be) an exhaustive list of all oil spills and leakages from the Bille Pipelines and Infrastructure for which the Defendants are liable and for which the Claimants seek damages, compensation and other relief in these proceedings. In particular: (a) As paragraphs 32 and 34 of the Amended Particulars of Claim make clear, the ten spills identified at paragraphs 31(b)-(d) of the Amended Particulars of Claim are all spills whose existence has been publicly acknowledged and recorded by SPDC. As paragraphs 32 and 34 of the Amended Particulars of Claim make clear, those records published by SPDC do not include a substantial (but unknown) number of other spills and leakages which have occurred from the Bille Pipelines and Infrastructure but which are not referred to in the records published by SPDC (“the Unpublished Spills”).”
“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”)?”
“It is denied (if it is so alleged) that the defendants are responsible for the ongoing contamination…Illegal refining is the critical driver of oil pollution in and around the Bille Community”
“(a) it is denied that oil pollution…was only or predominantly caused by oil spills from SPDC-operated assets. The causes of pollution in the area are varied, and include illegal refining, which is a critical driver of environmental degradation in the area”
“It is not admitted that the main source of pollution in the Bille area…was illegal refining. But for the avoidance of doubt, the claimants’ case is that the defendants are liable for oil pollution resulting from illegal refining in any event. Illegally refined oil is obtained through, and is a foreseeable consequence of, third party interference and the defendants’ liability arises for the reasons pleaded…above.”
“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 but this party interference and subsequently used in illegal oil refining by third parties?”
“the defendants deny [the claimants’ allegations that Shell is liable for pollution resulting from both (a) oil spills caused by third party interference and (b) illegal refining] and assert…that SPDC can only be liable for pollution not caused by third party interference…Furthermore as to (b), the defendants assert that SPDC is not responsible for oil pollution caused by illegal refining. If the defendants are right on (a) and (b) as a matter of Nigerian law, and the relevant preliminary issues [are decided in their favour] then this will have two consequences. First it will significantly reduce the scope of the factual investigation…Secondly…in light of the global claim issue, it will likely mean that a significant number of the claims can be dismissed…”