Oil be back: Supreme Court clarifies concept of continuing nuisance

A recent decision in the Supreme Court, Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16, provides a useful clarification of elements of the law of private nuisance and the limitation of actions.

Background

The case concerned an oil spill off the Nigerian coast which occurred in December 2011. The claimants brought a nuisance claim based on damage caused by oil which reached their property on the Nigerian Atlantic shoreline shortly after the spill. The claimants later sought to amend their claim form and statements of claim, but the defendants opposed this on the basis that the amendments were sought outside of the limitation period (that is, more than six years after the cause of action accrued, when the oil struck the claimants’ land), meaning that the amendments could only be permitted in very limited circumstances.

The key issue was therefore whether the amendments had been sought within the limitation period. That, in turn, rested on whether the oil spill damage constituted a “continuing nuisance”. Had the damage been caused by a continuing nuisance, the limitation period would have run afresh from day to day, meaning the amendments would have been sought in time.

Decision

The Court decided that the oil damage was not a continuing nuisance, and therefore the claimants were out of time to amend their claim.

In high-level terms, for a continuing nuisance to arise, there must be repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes undue interference with the use and enjoyment of the claimant’s land.

Here, while the oil was still on the claimants’ land and had not been cleaned up, the oil leak which caused it was an “isolated escape” or one-off event which was rectified within six hours. In other words, there had been no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible, and so the nuisance could not be said to be “continuing”. It did not matter (at least for limitation purposes) that the oil remained on the land for several years thereafter. Therefore the cause of action to which the leak gave rise was complete once the claimants’ land had been affected by the oil, and the limitation period ran from that date.

In short, then, the Supreme Court has preserved the status quo with respect to the law concerning nuisance and limitation of actions. For practitioners, the judgment is a valuable exposition of the tort of private nuisance, in particular the concept of continuing nuisance. While the judgment is of general application, it is likely to be of particular interest to those affected by or acting in disputes concerning interference with land arising out of catastrophic environmental incidents, such as flooding.

For a continuing nuisance to arise, there must be repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes undue interference with the use and enjoyment of the claimant’s land.

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