Environmental pollution: A continuing nuisance?

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The tide has not turned on the scope of ‘continuing nuisance’.

In the most recent of a series of preliminary hearings in Harrison Jalla and Others v (1) Royal Dutch Shell PLC (2) Shell International Trading and Shipping company Limited (3) Shell Nigeria Exploration and Production Company Limited, the High Court has addressed the complications that arise when there are differing limitation periods within one representative group.

In doing so, the High Court has clarified the narrow scope of continuing nuisance claims in matters of environmental pollution and affirmed the importance of bringing actions within established time limits.

In Harrison Jalla, the claimants brought an action in negligence and nuisance on behalf of 27,500 people who lived by a stretch of coast in Nigeria. They allege that the defendants- companies forming part of the Shell group- are responsible for an oil leak in December 2011. Relying on Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321, the claimants alleged that as the spill has not been cleared up properly, it continues to cause damage and therefore the limitation period should be extended on the basis of continuing nuisance.[1] In his judgment, Stuart-Smith J concluded that ‘there is no basis in authority or principle’ to find the defendants liable in the tort of continuing nuisance.[2] In coming to this conclusion, Stuart-Smith J drew a pivotal distinction between the facts of Harrison Jalla and Delaware Mansions Ltd.

In Delaware Mansions Ltd, the House of Lords held that the claimant was entitled to recover from the Highway Authority the costs of carrying out underpinning work necessitated by damage caused by tree roots. The claimant was able to recover the costs of damage even though cracking first appeared months before the claimant owned the property and the underpinning work was complete, as the continuing presence of the roots resulted in a continuing nuisance. By contrast, the release of oil in Harrison Jalla was held to be a single event of nuisance. The same was found in Sedleigh- Denfield, where an escape of water which had formed a lake was found to be a single nuisance which caused damage over a number of weeks. As Stuart- Smith J saw no difference in principle between nuisance by polluting oil compared to nuisance by escape of water, gas smells or other polluting agents, he held that to treat the oil leak as a continuing nuisance would be a ‘major and unwarranted extension of principle’.[3]

Environment liability is increasingly important with a marked increase in class actions for environmental damage in UK and overseas territories. Any business with potential liability for pollution incidents needs to ensure it employs any available limitation defences to prevent claims and reduce exposure. Awareness of the limited scope of “continuing nuisance” will be highly relevant to defending potential nuisance cases.

The judgment in the recent Harrison Jalla case will provide relief to businesses managing the risk of environmental liabilities.

The Court has reaffirmed the principle that a release of a pollutant is to be considered a single nuisance event rather than a continuing nuisance, even if the release continues to cause damage over a protracted period of time. The Court’s decision means that the number of claimants that are able to take their claim forward as part of the representative group has been significantly reduced as their claims are now considered time barred. This, in turn, has reduced the liability of the defendants.

The decision in this preliminary hearing emphasises the need for businesses to retain accurate records of events if the defence of limitation is to be effectively utilised.

[1] See Battishill v Reed (1856) for continuing nuisance.

[2] Paragraph 67 of the judgment.

[3] Paragraph 67 of the judgment.