In King Berebon v Shell Petroleum Development Co of Nigeria, the claimants in proceedings arising out of two oil spills in Nigeria applied for the restoration of claims that had been subject of an extended stay since 2014. The defendant applied for an order that the claims be struck out, or for an order for reverse summary judgement under the Civil Procedure Rules SI 1998/3132.
The claimants represented residents of the Bodo community in Nigeria onto whose land the oil had spilled in 2008. The defendant had admitted its liability for those spills. The claimants issued proceedings seeking:
In 2014 a settlement was reached between the parties in respect of the compensation claim, but the clean-up and remediation claim was not resolved. That claim was stayed for two years after the defendant entered into a memorandum of understanding setting out the basis on which a clean-up and remediation process, comprising three phases, could be implemented.
The stay was continued in 2016, and again in 2018, on the basis that limited progress had been made in carrying out the remediation scheme. There were further delays, including a 10 month suspension of the project in 2020 due to the COVID-19 pandemic, and a further suspension in November 2022 after BMI storage facilities and contractor base camps were burned and looted. By May 2023, the claimants were concerned about the adequacy of the clean-up operation and they asked the court to restore the outstanding claims for a mandatory injunction or damages, and to issue directions for those claims to be determined at trial.
The claimants contended that they had a right in private law to have the oil cleaned up and the land restored to the condition it was in before the spills occurred, and that there was a real dispute between the parties as to the adequacy of the clean-up that had been undertaken to date.
The defendant submitted that the claimants' application for restoration should be dismissed, or the claim should be struck out because the clean-up process was substantially complete and the core phases were due to finish within a matter of months. It asserted that the clean-up operation should be allowed to progress to full completion without the distraction of a major trial and that a mandatory injunction for a further or alternative clean-up process would achieve nothing. It argued that the claims therefore amounted to an abuse of process and that the claim was not capable of being decided by legal principles, in that the court could not order a mandatory injunction that would require constant supervision and cut across the regulatory scheme in Nigeria.
There was evidence that the clean-up process was at an advanced stage, but not complete, and that both parties remained committed to continuing the remediation through to completion. Despite that, there was a real dispute between the parties as to the adequacy of the work undertaken. That dispute was not suitable for disposal on a summary basis. The defendant had not established that the claim had no merit and was bound to fail, and it could not be said with any certainty that an injunction, or other declaratory relief, would be redundant.
The English courts would recognise, and would not question, the effect of an act of a foreign state's executive in relation to any acts which took place or effect within the territory of that state. The defendant's submission that the claim fell foul of the act of state doctrine was based on its assertion that, by its very nature and context, the clean-up claim would invariably require the English courts to question the validity or effect of the acts of the Nigerian regulators or executive agencies in the context of the clean-up.
However there was no inherent questions as to the lawfulness or validity of the clean-up and remediation activities of the Nigerian regulators and executive agencies. The court's determination of the residual issues in the proceedings would not necessitate any direct or collateral adjudication regarding Nigerian government policy, value judgements by the regulators, justification for the methods adopted, or the competence and integrity of Nigerian executive agencies. It followed that the clean-up claim did not necessarily require the court to adjudicate on the lawfulness or validity of state actors, and it was not bound to fail by reason of the act of state doctrine.
The clean-up process had been ongoing for many years and had made substantial progress, and there was considerable force in the defendant's submission that it would be disproportionate to order a costly and complex trial, given the limited matters now at issue in the claim. However, that could be addressed by appropriate costs and case management, it did not follow that a trial would be pointless and wasteful. Analysis of the outstanding disputes between the parties led to the conclusion that the remaining clean-up claim was not so insignificant as to amount to an abuse of process.
The claimants had an arguable case that they were entitled to relief in respect of the residual clean-up claim. The defendant had not established that the claim was bound to fail or amounted to an abuse of process. For those reasons, the defendant's application for reverse summary judgement or to strike out the claims would be dismissed if the stay were lifted.
The Civil Procedure Rules required the court to further the overriding objective by actively managing cases. The claimants had an arguable case and a prima facie right to have that case tried in the absence of settlement. The question that then arose was whether it would be proportionate and in accordance with the overriding objective to restore the claim, having regard to the substantial duration of the stay, the extent of the clean-up and remediation carried out under the planned phased process, and the limited matters remaining in issue. Although the issues identified by the parties would require some factual and expert evidence, that would not necessarily require a costly and complex trial since that exercise could be carried out rapidly and at modest cost.
"In those circumstances, the court considers that the time has come for the residual clean-up claim to be restored and case managed to a swift and final trial".
The claimants' application was granted, but the defendant's application was refused.
