Supreme Court Finds No Continuing Nuisance Simply Because Polluting Substance Remains On Claimants' Land

• Law Firm: Herbert Smith Freehills
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity, Chemicals
• Author: Mr Neil Blake and Maura McIntosh
• Published date: 29 May 2023

A recent Supreme Court decision has confirmed the orthodox position in relation to how the law of limitation applies to claims in private nuisance, in particular as to when there will be a "continuing nuisance" such that the limitation period starts afresh from day to day. This has significant implications for environmental claims which are framed in private nuisance and based on a one-off escape of a polluting substance: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16.

The bottom line is that the court will not find there is a continuing nuisance simply because the relevant substance (such as, on the assumed facts in this case, the presence of oil from an oil spill) continues to be present on the claimants' land. There must be some repeated activity or ongoing state of affairs for which the defendant is responsible, which is outside the claimants' land, and which causes continuing interference with the use and enjoyment of that land.

Many environmental claims may involve a continuing nuisance of this sort, for example where the alleged nuisance is comprised of smoke, chemicals or odours from an industrial site that continues to operate. However, as the Supreme Court's decision shows, claims based on a single one-off event will not comprise a continuing nuisance, even if the impact of that event on the claimants' land has not been rectified.

It should also be noted that the questions of whether the tort of private nuisance can be committed by a single one-off event, and/or where the nuisance emanates from the sea, were assumed but not decided in the appeal.

Background

The claims relate to a December 2011 oil spill off the coast of Nigeria at a platform owned/operated by the defendant group of companies. Proceedings were issued in December 2017, and the action was originally purported to be brought by two individual claimants as a representative action under CPR 19.6 on behalf of more than 27,500 individuals and 457 communities said to be affected by the spill. The representative element of that action has however been struck out (as outlined here), so that it now involves only the claims of the two individual claimants.

The claim was brought in the tort of private nuisance, which is committed where the defendant's activities unduly interfere with the use and enjoyment of the claimant's land. To address potential limitation difficulties, including in relation to subsequent amendments to the claim, the claimant submitted that there...