, /PRNewswire/ — On 20 June 2025, Mrs Justice May handed down an important judgment in the ongoing group litigation concerning oil pollution in the Bille and Ogale areas of the Niger Delta. The ruling addressed key Nigerian law issues on a preliminary basis, aiming to narrow the scope of the facts trial, which will take place in early 2027.
The defendants, Shell plc and Renaissance Africa Energy Company Limited, deny that they are responsible for the oil pollution in the Bille and Ogale areas, including because much of that pollution is caused by illegal refineries operated by criminal gangs. The defendants are represented by Debevoise & Plimpton LLP.
The Court considered two main categories of Nigerian law issues:
- Fundamental rights claims (under the Nigeran Constitution and African Charter on Human and Peoples’ Rights); and
- Private law claims (including under the Oil Pipelines Act (OPA)).
Ultimately, the defendants were successful in narrowing the scope of the claims. The judge rejected the fundamental rights claims in their entirety, and, as a result, many of the claimants’ claims will fall away altogether. Those that remain face serious difficulties, including in respect of limitation and having to show that the defendants can be legally responsible for damage caused by endemic crude oil theft and illegal refining.
On the private law claims, the judge noted that claims for damage caused by illegal refining faced “very significant hurdles“. The judge also agreed with the defendants that the private law claims are subject to a five-year limitation period, and that the Nigerian courts would follow the reasoning of the UK Supreme Court in Jalla v Shell International Trading and Shipping Company and another [2023] UKSC 16. Many of the remaining private law claims, including claims relating to events that occurred in the 1980s and 1990s, are therefore likely to be time-barred.
The Court found that, in addition to claims under the OPA against the licence-holder, the claimants could bring parallel common law claims against the licence-holder’s parent company. However, the claimants will have to establish those claims at trial, including by showing that the parent company owed them a duty of care in negligence during the relevant period.
Reacting to the High Court judgment, Christopher Boyne, partner at Debevoise & Plimpton LLP said:
“We are very happy with the judgment, which confirms that many of the claims are simply not viable and identifies significant hurdles for other aspects of the private law claim. The Court has clarified a number of difficult issues of Nigerian law and set clear parameters for the trial. The Court can now focus on the key issues without the distraction of untenable claims.”
Conway Blake, partner at Debevoise & Plimpton LLP, said:
“We welcome this well-reasoned and detailed judgment. It provides much-needed clarity in a complex and difficult area. The fundamental rights claims – which have been a distraction and wasted considerable time and resource – can be definitively put to one side.”
Fundamental rights
The defendants were entirely successful in defending the fundamental rights claims brought against them. In particular, Mrs Justice May found that most of the fundamental rights invoked by the claimants are only enforceable against the Nigerian State, not against private individuals or companies. The judge also held that the only right that is horizontally enforceable against private companies is not wide enough in scope to encompass claims in respect of damage caused by oil spills. The combined effect of these findings is that all of the claimants’ fundamental rights claims cannot proceed.
Even if the fundamental rights provisions were enforceable, the claimants would still not be able to rely on fundamental rights to obtain a more favourable limitation period because the judge found that the fundamental rights claims were “ancillary” to the private law claims.
Private law – Limitation
The judge accepted the defendants’ view that the applicable limitation period for all the private law claims is five years. The judge also made a number of important findings regarding the nature and scope of the claimants’ private law claims, i.e. the claims under the OPA, the Nigerian common law and various other pieces of Nigerian legislation.
Although the judge found that she could not resolve the continuing tort issues at this stage, she held that the Nigerian courts would follow the approach set out by the UK Supreme Court in Jalla v Shell International Trading and Shipping Company and another [2023] UKSC 16. The claimants will therefore have to show – in order to establish a continuing tort – that all the elements of the tort are repeated. Even then, they will only be able to claim in relation to causes of action that accrued within five years of the commencement of the claims.
Also, the claimants were forced to concede that the alleged failure to pay compensation did not amount to a continuing statutory breach. As a result, the claimants are limited to causes of action that accrued within the applicable five-year limitation period. This will have a significant impact on the scope of the claims.
Private law – Third party interference
The judge held that, although it is possible in theory to bring claims under the OPA in relation to damage caused by third parties, the relevant duty under the OPA is limited to existing structures and does not include design obligations (contrary to the claimants’ case) or a broad obligation to police pipelines or lobby the legislature.
Private law – Illegal refining
The judge also noted that the claims under the OPA in respect of illegal refining faced “very significant hurdles“. In particular, the judge could not see how a claim in respect of damage caused by the illegal refining of stolen crude oil could fall within the licence-holder’s duty to protect its pipelines.
The judge also ruled that the claimants’ claims in nuisance, trespass and under the rule in Rylands v Fletcher for the damage caused by illegal refining are unsustainable as a matter of Nigerian law. As for the claimants’ claims in negligence, the judge held that there were “significant legal barriers to be overcome before any claimant could make good a claim in negligence to recover for loss arising from illegal refining of stolen oil.” If these significant legal barriers cannot be overcome at trial then the claimants’ claims in respect of the damage caused by illegal refining will fail.
Private law – other legislation
The judge ruled that the claimants’ claims under the Petroleum Drilling and Production Regulations 1969 did not work as a matter of Nigerian law, including because certain provisions of those Regulations do not give rise to private rights of action. On that basis, these claims also fall away.
CONTACT: Gavin Collins, [email protected]
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