Contamination and the Ticking Clock: The Importance of Time Limits in Pollution Claims

In recent months, the issue of pollution of the UK's waterways has gained substantial momentum.

It was, in fact, the subject of a blog I penned only last month, examining the latest government proposals to hold water companies to account (https://www.bexleybeaumont.com/indiv-feature?id=183).

Of course, the problem of contamination is not confined to Britain or to those private enterprises entrusted with the management of water and wastewater.

Two years ago, the UK's Supreme Court gave permission for thousands of farmers and fishermen in the Delta region of Nigeria to sue the oil and gas giant Shell following a spillage of crude oil more than a decade ago.

As one might expect, the case has been large and complex.

According to documents submitted as part of the legal process, the claimants maintain that the incident - which occurred in the Bonga oil field, 75 miles off the Nigerian coast - has had "a devastating impact".

Although disputing some of the allegations made during proceedings, Shell has acknowledged that "some quantity of oil" from the leak reached the country's Atlantic coast.

However, the Supreme Court has just handed down a key ruling which may have significant implications for those looking to launch damages claims in the event of other similar episodes.

That is because deliberation of the Bonga spill case has not just depended on details of the environmental impact which the offended communities argue has been caused to the areas where they live and work.

The leak happened in December 2011 as crude oil was being transferred by the offshore oil storage platform to a waiting tanker. During that time, the courts have established, at least 40,000 barrels of oil escaped into the ocean. The claimants say that this has resulted in potentially irreparable damage to subsistence and commercial fishing and to farmland, pollution to drinking water and damage to mangrove forests and swamps, as a habitat and ecosystem and as a source of wood for domestic energy.

The claim for damages was issued almost six years to the day after the leak and was subsequently amended on a total of four occasions stretching to October 2019.

That is important because there is a time limit - known as a limitation period - meaning such nuisance claims have to be brought within six years of damage occurring.

The claimants had argued that the clock wouldn’t start ticking for the purposes of the time limit until the oil had been successfully cleaned up. Shell maintained that, as the leak itself was not a continuing state of affairs and had been halted six hours after it began in 2011, later changes to the claim were out of time.

In a decision handed down on 10th May 2023, the Supreme Court agreed with Shell (https://www.supremecourt.uk/cases/uksc-2021-0050.html) - something, as I say, which will have consequences should any similar issues arise elsewhere because of the very specific issue at the heart of this phase of the Bonga claim.

"The leak", said the Court, "was a one-off event or an isolated escape. The cause of action accrued and was complete once the claimants’ land had been affected by the oil."

In that sense, the Supreme Court (and the Court of Appeal before it) drew a clear distinction with cases where the cause of the nuisance continued for some time – such as ongoing encroachment by tree roots.

It’s not that the Court has said the impact of an oil spill or any other polluting incident like this does not matter. Of course, the nature and scale of the impact are likely to dictate the level of damages awarded if a claim is successful. The problem from the claimants' perspective is that they failed simply because legal action was taken too late.

As a result, those looking to bring such claims in the future will need to focus on the cause of a spill and whether it was a one-off event or continued for some time – rather than the persistence of the resulting pollution.

It may seem to be a relatively technical point and one which complicates things for those concerned with protecting the environment, especially given that the true impact of a polluting event often isn’t apparent straight away. Nevertheless, it underlines how claims - regardless of how strong they may seem to be - need to be made before the respective time limit expires.

Those involved may end up needing to start the legal process before they know the full impact of any nuisance to avoid the possibility of running out of time.

Although the Supreme Court's judgement is the end of the road for those whose claims were brought too late, it does not mark the end of all claims arising from the Bonga spill. For those whose claims were brought in time, the question of whether the broader pursuit of damages from Shell will ultimately succeed - and, if so, how large those damages will be - remains.