Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in enterprise and human rights /environmental claims litigation, notably because it pertains to legacy air pollution. I reported on earlier developments within the case right here, with additional hyperlinks in that submit to but different earlier judgments.
The Alame declare is often known as the Bille and Ogale group declare litigation. It’s not to be confused with the ‘Bodo’ declare, by which hearings had been concluded on the London courts earlier in June.
Of observe is to start with that the decide’s findings are all on preliminary points (‘PI’) of regulation. They aren’t on issues of reality. As an example, and with nice significance viz the problem of ‘legacy’ air pollution, the decide’s discovering [77] that
The specialists agree that the place trespass is relied on, and as trespass doesn’t require harm to be proved, a brand new reason for motion will come up every day that oil stays on a claimant’s land.
and [180] that
Widespread regulation claims for harm brought on by oil spills from non-pipeline property could also be introduced in negligence, nuisance, Rylands v Fletcher and trespass, in every case relying upon the actual details.
don’t suggest that the decide has held that Shell or any of the opposite defendants have trespassed by not cleansing up the related legacy air pollution. It merely signifies that she has discovered there may be such chance, relying on the details. In fact the discovering remains to be massively related, seeing additionally the power (pun unintended) Shell had invested in combating such a discovering. One of many attention-grabbing questions imo for future reference, is how trespass as a promising personal regulation declare to handle legacy air pollution, features within the occasion of divestment by the polluter (akin to right here: the sale of Shell Nigeria to Renaissance).
The judgment is prolonged however very effectively structured and Leigh Day, solicitors for claimants, have good abstract of the principle points right here.
On this submit, noblesse oblige, I give attention to one particular personal worldwide regulation challenge, particularly query
PI 5 (1) Insofar as a celebration alleges within the context of a declare underneath part 11 of the OPA that an oil spill was brought on by Third Get together Interference: What’s the relevant regulation governing the burden and commonplace of proof?
It is a Rome II query. [141]
The events are agreed that the relevant regulation governing the burden and commonplace of proof is a matter of English personal worldwide regulation. As to that:
(a) Insofar because the occasion giving rise to break occurred on or after 11 January 2009, the selection of regulation is ruled by the Rome II Regulation (“the Regulation”). The events agree that underneath Article 22 of the Regulation burden of proof is ruled by the regulation of the declare, right here Nigerian regulation. There’s a dispute between them as to what regulation governs the usual of proof.
(b) Insofar because the occasion giving rise to break occurred earlier than 11 January 2009, alternative of regulation is ruled by Half III of the Non-public Worldwide Regulation (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Each side agree that, underneath English alternative of regulation ideas, guidelines of proof are a matter for the regulation of the discussion board, masking each burden and commonplace of proof: Dicey, Morris and Collins on the Battle of Legal guidelines, sixteenth Edn. Para 4-034.
[143] explains the relevance:
If the usual of proof is ruled by Nigerian regulation, then each specialists agree that the constant follow of the Nigerian courts is to use the legal commonplace of proof (i.e. past cheap doubt), whether or not the allegation is made in opposition to a celebration or a nonparty. Beneath English regulation, the usual of proof is the civil commonplace i.e. stability of chances.
[144] Due to this fact the only contentious level for willpower underneath this PI is whether or not the usual of proof in relation to post-11 January 2009 occasions, the place alternative of regulation is roofed by the Regulation, is a matter ruled by English regulation because the regulation of the discussion board or by Nigerian regulation because the regulation of the declare.
My most up-to-date touch upon the problem options in my evaluate of Quilombola v Norsk Hydro on the Dutch courts – but see additionally different posts utilizing the tag ‘proof and process’.
The one case on the problem mentioned in present judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I evaluate right here. Counsel for claimant steered
that the strategy of Dingemans J in Marshall was unsuitable in precept and shouldn’t be adopted. She argued that Article 1(3) of the Regulation is worried with the way by which issues are proved fairly than the usual to which they have to be proved, submitting that the diploma to which the courtroom have to be glad of a related matter (ie commonplace of proof) is an indivisible a part of the burden of proof and ought to be thought to be a part of the identical rule of regulation underneath Article 22, making use of the regulation of the declare. Alternatively, if the evaluation in Marshall is accepted and commonplace of proof is to be decided underneath English widespread regulation, she steered that the courtroom ought to undertake a versatile strategy – referring to the observations of Andrew Smith J in Fiona Belief v Privalov [2010] EWHC 3199 – and apply Nigerian regulation to each burden and commonplace of proof the place a celebration raises an allegation of loss brought on by [third party interference].
As I flagged in my submit on Marshall, I’m not satisfied by commonplace of proof following the proof and process carve-out. The exact delineation of burden of proof underneath Rome II may do with extra authority.
I think about permission to enchantment could also be sought on plenty of points. Trial on the substance is scheduled for 2027.
Geert.
EU Non-public Worldwide Regulation, 4th ed, 2024, 4.82 ff.
