“The Claimants in claim HT-2020-000143 shall: 10.1 by11 February 2021 , confirm (with supporting evidence) to the Defendants on what basis it is said that the Community Claimants have validly authorised their purported legal representatives, Rosenblatt Limited, to act for them in the proceedings; and 10.2 by31 May 2021 , confirm (with supporting evidence) to the Defendants on what basis it is said that the Individual Claimants have validly authorised their purported legal representatives, Rosenblatt Limited, to act for them in the proceedings.”
“4. … Rosenblatt’s position is that it has and has always had the requisite authority to act for the Community Claimants, as instructed by the Steering Committee. To explain this position, Rosenblatt has obtained further documentation and witness evidence as set out below in respect of Rosenblatt’s current and retrospective authority. … 11. The Five Powers of Attorney are exhibited to Mr Aloyosius Okerieke’s First Witness Statement dated10 February 2021 (for the Ijaw Kings) and to Mr Harrison Jalla’s First Witness Statement dated10 February 2021 (for the Itsekiri King). At paragraph 6 of Mr Jalla’s statement, he explains that the five Kings are the rulers of the 479 communities (as listed in Schedule 2 to the Particulars of Claim in HT-2020-000143) and the communities are divided by tribe, either recognising the Itsekiri King or one of the four Ijaw Kings as monarch. The Power of Attorneys are drafted in a similar format as between Rosenblatt and each King and contain specific reference to the previous Power of Attorney executed between the King and J&S (attached as Appendix A) and reference to the Steering Committee’s authority to appoint solicitors and provide instructions. The latter reference echoes that of the two letters provided previously to the Defendants dated29 July 2020 … 12. Two witness statements have been obtained from Elders for each of the Itsekiri and Ijaw tribes … These two witness statements have been provided by the Honourable Olayjemi Johnson Nanna, an elder of the Koko Community as belonging to the Itsekiri tribe, and Chief Rumson Victor Baribote, an elder of the Bomadi Community as belonging to the Ijaw tribe. … 15. We are instructed that a meeting of the 479 community leaders was called to take place on9 February 2021 . At that meeting, statements were executed and arrangements made to send the statements to us. Owing to the difficulties in the logistics of mass document collation and transmission within the environment of the Niger Delta (enhanced only by Covid-19) we are not presently able to say when we will be in a position to provide these documents. The Court is aware that we are embarking on a mass sign-up exercise for individual claimants at the same time as gathering evidence for the Claimants’ pleading for date of damage due on4 June 2021 . In relation to authority, the utility of that sign-up exercise is captured at paragraph 10.2 of the Order which provides for submission of evidence on behalf of the Claimants in support of Rosenblatt’s authority to act for individual claimants. We would therefore respectfully suggest that any further documents produced in respect of additional evidence to meet paragraph 10.1 of the Order, are provided at the same time as those for the individual claimants, namely31 May 2021 .”
“7. … Since Rosenblatt came on to the Court record in the Protective Proceedings on26 August 2020 it has been and continues to be the Claimants’ position that Rosenblatt has, and has always had, the requisite authority to act for all the Claimants in the Protective Proceedings.” … 10. When Johnson & Steller ceased trading in July 2020, Rosenblatt was instructed by the Steering Committee to come on the record in its place. This was confirmed in a letter sent by Rosenblatt to the Defendants’ Solicitors on11 September 2020 … That letter also enclosed copies of a letter from each of the Steering Committee and the Oil Spill Victims Initiative (“OSPIVV”) dated29 July 2020 . In those letters the Steering Committee on behalf of all Claimants, both individual and community, authorised Rosenblatt to “prosecute, manage and conduct the proceedings on behalf of the Claimants on the basis of instructions given by the Steering Committee” … The Claimants’ position has been clearly stated in further correspondence between the parties. We do not propose to repeat here the position set out in our letter dated24 September 2020 … which is maintained. For the avoidance of any doubt, it remains Rosenblatt’s position that the Steering Committee is validly appointed and therefore that Rosenblatt is validly authorised to act on behalf of all the Claimants in the Protective Proceedings. 12. Accordingly, with the authority derived from five Powers of Attorney between the Kings of the Ijaw tribe and Rosenblatt, and the King of the Itsekeri tribe and Rosenblatt, all dated10 February 2021 , Rosenblatt is satisfied that it is authorised act for the Individual Claimants. Taking instructions from each individual is simply “optional or for good measure”… 13. However, following the directions of the Court in paragraph 10.2 of the Order Rosenblatt has, adopting a “belt and braces” approach, sought to obtain additional documentation to further support the Claimants’ position that Rosenblatt has the requisite authority to act for all 27,830 Individual Claimants in the Protective Proceedings. Rosenblatt has deployed local agents on the ground in Nigeria to seek signed Letters of Authority from the Individual Claimants. … 18. … At the date of this statement, given the complexities of operating in such remote areas with difficult terrain and with limited resources on the ground in Nigeria, and the impact that restrictions imposed by the Covid-19 pandemic continue to have, hampering all logistical efforts, we have not yet received a full complement of signed documents for review. This is despite enormous effort on the part of all those involved. As such I am, regretfully, not in a position to exhibit any further documentation at this stage. Rosenblatt are continuing to work on this and will provide a further update as soon as we are able. 20. … we have received in the region of 350 witness statements on authority from community leaders which we are working to review. Unfortunately, it appears from an initial review of some of these that when the documents were printed in Nigeria, a portion of the text was cut off from the template provided resulting in some text missing from every completed document that we have received. The missing text should read: “I confirm that the … community is a Claimant in proceedings before the High Court of England and Wales (HT-2017-000383 and HT-2020-000143...”
“11. Given the complexities of operating in a remote and difficult region, with limited resources, together with the fact that the field operation was continuing apace, it was not possible for the documents to be scanned and sent to Rosenblatt contemporaneously. All the documents we have collected have been transported to Warri and are being stored at the OSPIVV office there, which is also being used as a base for processing the thousands of documents. 12. At the OSPIVV office there is now a team of 15 people from Arthur Ferdinand and a further 11 from OSPIVV working with Edewor & Co at the OSPIVV office to cross-check and verify, then scan and send, the documents to Rosenblatt. Given the vast number of Claimants and our limited scanning resources (which enables us only to scan one document at a time) these have to be uploaded, compressed and then sent in small batches by email. There is a backlog of documents which I understand are still being reviewed by Edewor & Co, following which they will be provided to Rosenblatt. ”
“A Paramount Ruler cannot therefore validly purport to provide authority or instructions to OSPIVV – and by extension, the Steering Committee, or the Claimants’ representatives – on behalf of any legal person who has not given their express authority for the Paramount Ruler to do so.”
“1. The defendants in this matter have raised an issue as to whether the claimants' purported legal representatives, Rosenblatt Limited, have authority to act in what is called Jalla 2 Proceedings, HT-2020-000143. The defendants have proposed that the issue should be dealt with by the court at a half-day hearing either in October or more probably next February, during the date of damage trial. 2. The issue of whether or not the claimants’ representatives had authority to represent all of the individual claimants set out in the schedule to the particulars of claim, and/or the communities also set out in the schedule to the particulars of claim, was raised before this court at the CMC back in November 2020. As a result of that, in the order dated18th December 2020 , the court ordered the claimants to provide evidence of the basis on which Rosenblatt had authority to act, not only for the lead named claimant, Mr. Jalla, but also the other individual claimants and the communities purportedly included within the claim. 3. The court is satisfied that the claimants have complied with that order in that they have served evidence setting out the basis on which they contend Rosenblatts are authorised to act for the community claimants and the 27,830 individual claimants in the Jalla 2 proceedings. 4. Mr. Nsugbe QC SAN, leading counsel for the claimants, has taken the court to the statements of the Honourable Olayjemi Johnson Nanna and Chief Rumson Victor Baribote, together with the statement of Ms. MacLeod, in which the position is stated to be that under Nigerian native law or traditional law and custom, the King has paramount authority. The Kings in question (with authority over the communities the subject of the proceedings) have delegated that authority to the Bonga Oil Spill Steering Committee. As a result, it is not necessary under Nigerian law, which recognises traditional law and custom, for individual claimants to give separate authority to their legal representatives. Ms. MacLeod has explained that the Steering Committee, which has the delegated authority from the Kings, has expressly authorised Rosenblatt to act on behalf of all of the individual claimants and the communities. 5. Therefore, I am satisfied that the claimants complied with the order of18 December 2020 by serving the evidence on which they rely, setting out the basis of their case that there is adequate authority for the Jalla 2 proceedings to continue. 6. The defendants do not accept that the evidence provided by the claimants is adequate and/or would be sufficient to satisfy the relevant requirements for authority for the purposes of Nigerian law. The defendants rely upon, in particular, the witness statement of Ms. Atemie, which states that under Nigerian law, leaders cannot act on behalf of their communities and/or other individual claimants. 7. Therefore, the court is faced with a situation where the claimants and the defendants are in dispute as to whether Rosenblatts have adequate authority in order to act for the many thousands of individuals and communities identified in the Jalla 2 proceedings. It seems to me that issue does need to be grappled with by the court. It is a dispute that could affect the ability of the court to make judgments that would be binding on the many thousands of individuals and communities affected by the court’s decisions. 8. It does seem sensible that the matter should be dealt with at the February 2022 hearing, rather than in October 2021. I accept Mr. Nsugbe’s submission that October would be too soon. In any event it is unlikely that the court will have sufficient time available to deal with it at the October CMC. It would be very difficult to find another date prior to February, and also I am conscious of the fact that the parties have a huge task ahead of them in order to prepare for the February hearing. 9. Therefore, the sensible course is to order that this issue of disputed authority should be dealt with at the February 2022 hearing, so that preparation is not disrupted prior to the start of that trial. 10. I will order both sides to provide any further factual and/or legal evidence in relation to the issue. It may well be that some factual evidence might be required when dealing with the matters of delegation and authority, in addition to the issues of traditional law and custom and Nigerian law. 11. In terms of the date for service of that evidence, I am going to invite the parties to indicate what dates they think would be appropriate, but what I have in mind is that both sides will have an opportunity, if they so wish, to put in any further factual and/or expert evidence, perhaps by a date in October. I will then order any legal experts to have a discussion and produce a joint statement for the court setting out the issues of law on which they are agreed or not agreed, together with short reasons for any disagreement. That will enable the parties to identify any issues of law, whether traditional law or Nigerian codified law or common law, in advance and understand where the fighting ground lies.”
“Whether, as a matter of Nigerian law, the claimants’ solicitors have authority to act for the claimants in proceedings HT-2020-000143.”
“1. As a matter of Nigerian law, the Claimants’ solicitors have authority to act for the claimants in Jalla 2 to the extent that (a) individual Claimants have given their consent; or (b) the claims are community claims in respect of community land rights; but (c) not otherwise in respect of individual claims or private individual rights. 2. Save for Mr Harrison Jalla, Mr Abel Chujor, Mr Dennis Ojulu, Ms Elizabeth Ekolokolo, and Mr Johnson Agbeyagbe, RBL Law Limited does not have authority to act for the claimants in Jalla 2 in respect of individual claims or private individual rights.”
“[23] What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad. [24] In determining whether to order any payment and its amount, account needs to be taken of all relevant factors including the likelihood (if it can be assessed) of the claimants being awarded the costs that they seek or a lesser and if so what proportion of them; the difficulty, if any, that may be faced in recovering those costs; the likelihood of a successful appeal; the means of the parties; the imminence of any assessment; any relevant delay and whether the paying party will have any difficulty in recovery in the case of any overpayment.”
“The authority issue that was determined in the [Date of Damage Judgment] arose as between this firm and your clients, and not as between the Claimants and your clients. Thus, the Claimants are not concerned with the costs of that issue and should not have any liability in respect of it.”
“It is appropriate for the court to make a wasted costs order against a legal representative, only if— (a) the legal representative has acted improperly, unreasonably or negligently; (b) the legal representative’s conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted; (c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs.”
“(1) Where the court is considering whether to exercise its power undersection 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must— (a) be added as a party to the proceedings for the purposes of costs only; and (b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.”
“(1) Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against. (2) Generally speaking the discretion will not be exercised against “pure funders”, described in para 40 of Hamilton v Al Fayed (No 2)[2003] QB 1175 , 1194 as “those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course”
“As all three members of the court observed in Petromec v Petrobras, the exercise of the discretion is in danger of becoming over-complicated by authority. The decision of the Privy Council in Dymocks, which contains an authoritative statement of the modern law, explains and interprets the Symphony guidelines in a way which reflects the variety of circumstances in which the court is likely to be called upon to exercise the discretion. Thus, the Privy Council has explained that an order of this kind is "exceptional" only in the sense that it is outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. Similarly, it has made it clear that the absence of a warning is simply one factor which the court will take into account in an appropriate case when deciding whether, viewed overall, it would be unjust to exercise the discretion in favour of making an order for costs against the third party. We think it important to emphasise that the only immutable principle is that the discretion must be exercised justly. It should also be recognised that, since the decision involves an exercise of discretion, limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind.”
“In my judgment the principle that emerges clearly from the decisions of this Court in Tolstoy, Floods and Hamilton v Al Fayed is that there is a strong public interest in ensuring that impecunious claimants can have access to justice even if that means that successful defendants are left substantially out of pocket. Because of this, legal representatives should not be at risk of a third party costs order unless they are acting in some way outside the role of legal representative. The nature of the role of the legal representative means that the indicators useful in considering the liability of, for example, a pure funder, such as whether he has been closely involved in making decisions about the conduct of litigation or whether he has a substantial financial interest in the success of the litigation do not work. The legal representative will always be closely involved in taking decisions about the conduct of the litigation and will always have a financial interest in the outcome, particularly where he is working under a conditional fee agreement or because although he is invoicing the client regularly for work done, he knows that in practice he will never be paid unless the client wins the case.”
“The court may make an order under this rule only where— (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”
“[17] Before considering whether it is necessary to make the orders the defendant seeks, or any orders, the court needs to consider when a third party costs order is likely to be made in cases of this sort. If the case is weak it is inherently improbable that an order would be made. Alternatively, if it is so overwhelming it seems unlikely that ancillary orders for disclosure, inspection cross-examination of otherwise will be considered really necessary. [18] … (i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution. (ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias. (iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2[2002] EWCA Civ 665 reported[2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of "pure funders" means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course. (iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party's funding has caused the defendant to incur the costs it would not otherwise have had to incur. (v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight. (vi) Most of the decided cases on the exercise of the court's discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons. (vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.” “[19] In considering whether, in the light of the particular facts and issues in the case, disclosure is necessary for the fair determination of the application I conclude that I should consider: (i) The strength of the application as it now appears unassisted by disclosure; (ii) The potential value to the fair determination of the application of the documents of which the claimant seeks disclosure and whether they are likely to elucidate considerations highly probative of the exercise of the court's discretion, or threaten to drag the application into a side alley of satellite litigation with diminishing returns for the overall issue; (iii) Whether on a summary assessment it is obvious that the documents for which disclosure is sought will be the subject of proper legal professional privilege; (iv) Whether the likely effect of any order the court might be minded to make will be proportionate and just in all the circumstances.”