Member Article

The Supreme Court on 10 May 2023 considered whether damage caused by an oil spill in 2011 could constitute a “continuing nuisance” – and so extend the limitation period for a claim.

Private nuisance

Private nuisance (as distinct from the criminal offence of public nuisance) arises where the defendant’s activity, or a situation for which the defendant is responsible, causes a substantial and unreasonable interference with the use and enjoyment of the claimant’s land.

The law seeks to protect the claimant against any loss to the utility or the value of its land. Claims in private nuisance therefore often arise between neighbouring landowners, in the context of water leaks, smoke or the spread of invasive plants such as Japanese knotweed.

More recently and as widely reported, the Supreme Court has held in the case of Fearne v Tate Gallery that overlooking can (in very narrow circumstances) also constitute a private nuisance.

The cause of action only arises however on proof of damage – whether this is physical damage to land or buildings caused for example by vibration or flood, or interruption in the claimant’s use and enjoyment (as in the Tate Gallery case, or where the nuisance is caused by something intangible such as a smell or noise).

Continuing nuisance

A private nuisance can be a one-off event, or it can be caused by a repeated activity or an on-going state of affairs which isn’t remedied by the defendant – in which case, the claim will accrue each day on a continuing basis.

Classic examples of a continuing nuisance include repeated construction noise and vibration, buildings overhanging onto a neighbour’s land, or tree roots encroaching and causing damage to neighbouring property.

The reason for the case of Jalla v Shell International Trading and Shipping Company [2023] UKSC 16 wasn’t really exploring the law of nuisance however, but limitation.

Background

On 20 December 2011, there was a leak from the Bonega oil field 120km off the coast of Nigeria. Some 40,000 barrels of oil were lost – one of the largest spills in Nigerian oil exploration history. That oil migrated towards and (it was assumed for the purposes of the case) landed at the Nigerian Atlantic shoreline, where it caused damage to the claimants’ land. The spill had not been cleaned up or removed by the defendants.

The claim was eventually issued on 13 December 2017, just under six years after the leak occurred. The claimants then in 2018 and 2019 issued a series of applications to make various amendments to the claim, including changing one of the defendant parties – which the defendants argued was after the six-year limitation period under English Law had expired. The defendants therefore argued that permission to amend should be refused.

The claimants sought to argue that so long as the undue interference with the land was continuing, the cause of action arose day after day. This would therefore constitute a “continuing nuisance”, and so the applications to amend the claim form and particulars of claim would have been made within the limitation period.

Decision

The Supreme Court (and the courts below it) held that this was an incorrect interpretation of the word ‘continuing’. It was wrong in principle to equate legal nuisance with physical damage or harm, or with something which was a ‘nuisance’ to the claimants in the colloquial sense.

The leak itself was a one-off event occurring in 2011.  That one-off event had been remedied or abated by turning off of the pipeline. The leak therefore only gave rise to a single, one-off cause of action. The oil on the land was a consequence of the leak, not a continuing cause of action.

The claimants also suggested that because oil requires a more intensive clean-up operation than (for example) smells or smoke, the spill had led to more permanent consequences – continuing the nuisance. This was also rejected by the Supreme Court, on the basis that not only was there was nothing to support this assertion, but the particular properties of different substances could not give rise to different principles of law.

The fact that the defendant had not carried out a clean-up operation (and so oil remained on the land) could not give rise to a continuing nuisance. If the consequential damage caused by a breach could of itself constitute a continuing nuisance, this would extend the limitation period indefinitely – potentially by months or even years.

The Supreme Court confirmed that this isn’t a question of control over the land – a defendant could still be liable where it could not (for whatever reason) remedy a continuing breach it was causing. A continuing nuisance in the legal sense was considered commonplace, but it simply didn’t arise on these facts.

Outcome

The judgment explains that the law of limitation is based on a number of important policy points which are in place principally to protect defendants, but also in the interest of the state and claimants.

Whilst the decision is disappointing for the claimants – individuals whose homes and lives have been affected by pollution – the legal reasoning is sound. The court did not deny that there might have been an arguable case on the merits, but no new law has been created.

 

Link to article