26 January 2017
Lawyers for over 40,000 Nigerians will appeal a High Court judgment handed down today which ruled that two polluted communities in the Niger Delta cannot seek redress against the oil giant Shell in the English courts.
The Judge concluded that Royal Dutch Shell plc (the parent company) has no legal responsibility for the systematic pollution of the Nigerian communities by its Nigerian subsidiary, the Shell Petroleum Development Company of Nigeria Ltd (SPDC).
Mr Justice Fraser sitting in the Technology & Construction Court, part of the High Court, held that the claim against the London based parent company, Royal Dutch Shell, had no prospect of success and, therefore, that the claim against Shell Nigeria could not proceed.
However, according to the lawyers for the communities, Mr Justice Fraser has made this judgment at this early stage in the litigation, before any documents were disclosed and without hearing oral evidence from witnesses about the relationship between Royal Dutch Shell and its Nigerian subsidiary.
Daniel Leader, the lawyer for the communities, from law firm Leigh Day also pointed out that the Judgment is inconsistent with recent decisions of other European courts.
In 2012 the European Court of Justice ruled the Shell parent companies “…in fact exercised decisive influence over their joint subsidiary’s conduct”; Shell Petroleum NV v. European Commission  at para 51.
Further, in 2015 the Dutch Court of Appeal ruled that “Considering the foreseeable serious consequences of oil spills to the local environment from a potential spill source, it cannot be ruled out from the outset that the parent company may be expected in such a case to take an interest in preventing spills …. the more so if it has made the prevention of environmental damage by the activities of group companies a spearhead and is, to a certain degree, actively involved in and managing the business operations of such companies….” Dooh and Milieudefensie v RDS and SPDC  at para 3.2.
The communities intend to appeal against this finding and they are confident that this decision will be overturned by the Court of Appeal. Leigh Day is representing over 40,000 Nigerian from two communities (the Ogale Community and the Bille Community) in claims against Royal Dutch Shell plc (RDS) and its Nigerian subsidiary, the Shell Petroleum Development Company of Nigeria (SPDC).
Both communities allege that they have suffered systematic and ongoing oil pollution for years because of Shell’s operations. Shell does not dispute that both communities have been severely polluted by its oil, or that it has yet to clean up the oil.
However, in November 2016, Shell sought to block the claims in London on the grounds the London based parent company (Royal Dutch Shell) was not legally responsible for the pollution caused by its Nigerian subsidiary and that it was open to the communities to seek redress through the Nigerian courts.
By contrast, the claimants argued that Royal Dutch Shell exercised significant direction and control over its’ Nigerian subsidiary and was, therefore, liable for its systematic pollution of Ogale and Bille.
In addition, there was no prospect justice in Nigeria. Cases of this complexity in Nigeria tend to take 20 years or more, a situation the English Court of Appeal recently described as “beyond catastrophic”. (IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation  EWCA)
Mr Leader, a partner in the international group claims team at law firm Leigh Day, said: “The Ogale and Bille communities are surprised by this Judgment and have instructed us to lodge an appeal. It is our view that the judgment failed to consider critical evidence which shows the decisive direction and control Royal Dutch Shell exercises over its Nigerian subsidiary. It is also inconsistent with recent judgments of the European Court of Justice and the Dutch Court of Appeal.”
King Okpabi, Paramount Ruler of the Ogale Community said: “Our community is disappointed but not discouraged by this Judgment and we are confident that, as in the Netherlands, the Court of Appeal will see things differently.
"Royal Dutch Shell makes billions of dollars of profit each year from Nigerian oil but our communities which host its’ infrastructure have been left environmentally devastated.
"This decision has to be appealed, not just for Ogale but for many other people in the Niger Delta who will be shut out if this decision is allowed to stand.
“Shell is simply being asked to clean up its oil and to compensate the communities it has devastated. That is not an unreasonable request but Shell will not even meet with us.
"Shell underestimate us if they think this judgment will affect our resolve. There is no hope of justice in the Nigerian courts. We still very much believe in the British justice system and so we are going to appeal this decision.”
Chief Temebo, spokesman of the Bille Council of Chiefs said: “We are disappointed by the news of the judgment, but we will continue to fight with all our might. The Bille people have been pushed against the wall by Shell for too long. We will appeal the Judge’s decision”.
“If the claim does not continue in the English courts, we have no hope that the environment will ever be cleaned up and the fish will ever return to our waters. Shell will do nothing unless they are ordered to by the English courts.”
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