Following a major offshore oil spill in Nigeria in 2011, the claimants argued the oil remaining on their land constituted a continuing nuisance, restarting the limitation period daily. The Supreme Court rejected this, holding that a one-off escape causing ongoing damage does not create a continuing cause of action in private nuisance.
Background
On 20 December 2011, a rupture in a flowline at the Bonga oil field, located approximately 120 km off the coast of Nigeria, caused an estimated 40,000 barrels of crude oil to leak into the ocean over approximately six hours. The claimants, Mr Jalla and Mr Chujor, two Nigerian citizens, alleged that the oil migrated to the Nigerian Atlantic shoreline and caused devastating damage to their land, including waterways, fishing grounds, farmland and mangrove swamps. They brought proceedings in the tort of private nuisance against Shell International Trading and Shipping Co Ltd (STASCO), an English company, and Shell Nigeria Exploration and Production Co Ltd (SNEPCO), a Nigerian company.
The claim form was issued on 13 December 2017, just under six years after the spill. Subsequent amendments were sought in April 2018 and later in 2019, after the expiry of the six-year limitation period under section 2 of the Limitation Act 1980 (or five years under Nigerian law). The claimants argued that the limitation period had not expired because there was a continuing nuisance — the oil remained on their land and had not been removed or cleaned up — meaning the cause of action accrued afresh from day to day. For the purposes of this appeal, it was assumed that some oil reached the shoreline within weeks rather than months of the spill.
The Issue
The sole question before the Supreme Court was whether, on the assumed facts, the presence of oil from a single, one-off spill remaining on the claimants’ land constituted a continuing nuisance in law, such that the limitation period restarted daily for as long as the oil remained.
The Court’s Reasoning
The Nature of Private Nuisance and Continuing Nuisance
Lord Burrows, delivering the unanimous judgment, began by setting out the general principles of the tort of private nuisance: it is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with the use and enjoyment of the claimant’s land. It is actionable only on proof of damage, not per se.
Lord Burrows noted that the concept of a ‘continuing nuisance’ is commonly and naturally used in everyday language to describe a continuing problem, but this is misleading in a legal context. He observed that the lower courts may have slightly overcomplicated matters:
While I agree with the essential reasoning of the lower courts, with respect, they may have slightly overcomplicated matters by failing to make clear that, far from being unusual, a continuing nuisance in the legal sense is commonplace in respect of the tort of private nuisance.
He articulated the legal principle as follows:
In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land.
Examples include smoke, noise, smells, vibrations and, as in Fearn v Board of Trustees of the Tate Gallery, overlooking — where the interferences continue on a regular basis. In such cases, the cause of action accrues afresh on a continuing basis, and an injunction is a standard remedy.
Lord Burrows endorsed the statement of Lindley LJ in Hole v Chard Union [1894] 1 Ch 293:
what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.
Distinguishing Delaware Mansions
The claimants relied heavily on Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321. In that case, tree roots from a pavement tree continued to encroach onto the claimant’s land, causing ongoing damage by dehydrating the soil. Lord Burrows held this was properly a continuing nuisance because there was an ongoing state of affairs outside the claimant’s land — the living tree and its encroaching roots — for which the defendant was responsible and which continued to cause undue interference with the land. This was fundamentally different from the present case where the leak had stopped after six hours and there was no continuing causative state of affairs offshore.
Application to the Facts
Lord Burrows concluded that the claimants’ submission was incorrect:
There was no continuing nuisance in this case… because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land. The leak was a one-off event or an isolated escape.
He drew an analogy with Sedleigh-Denfield v O’Callaghan [1940] AC 880, noting that in that case the cause of action was complete once the claimant’s land was flooded; there was no continuing cause of action for as long as the land remained flooded. So here, the cause of action was complete once the oil affected the claimants’ land.
Lord Burrows further observed that accepting the claimants’ argument would convert the tort of private nuisance into a failure by the defendant to restore the claimant’s land, and would undermine the law on limitation of actions:
To accept Mr Seitler’s submission would be to undermine the law on limitation of actions – which is based on a number of important polices principally to protect defendants but also in the interests of the state and claimants… because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up.
Darley Main Colliery
The claimants also relied on Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127, where a fresh subsidence years after the initial damage was held to constitute a new cause of action. Lord Burrows distinguished this: the crucial factor was that in Darley there was fresh, separate and different damage at the later date. The claimants in the present case did not allege separate and different damage — they contended that the same interference continued by reason of the oil remaining on their land.
Control Over the Nuisance
The defendants argued that a continuing nuisance required the defendant to have control over the nuisance. Lord Burrows rejected this as a necessary requirement, citing Thompson v Gibson (1841) 7 M & W 456, where a defendant remained liable for a continuing nuisance despite lacking the ability to remove the offending structure. However, this point did not assist the claimants because the fundamental reason for rejecting their claim was the absence of any continuing causative activity or state of affairs outside their land.
Permission to Cross-Appeal
The defendants sought to argue that private nuisance cannot be committed where the nuisance emanates from the sea, or by a single one-off event. The court refused permission to cross-appeal on these points, as they had not been properly raised and were unnecessary given the determination of the continuing nuisance issue.
Practical Significance
This decision clarifies the distinction between continuing damage (the consequences of a tort persisting on the claimant’s land) and a continuing nuisance (an ongoing causative activity or state of affairs outside the claimant’s land for which the defendant is responsible). The presence of pollution or physical damage remaining on land following a single escape does not constitute a continuing nuisance in law. The cause of action accrues when the interference first affects the claimant’s land, and the limitation period runs from that point. This has significant implications for environmental pollution claims, particularly oil spill litigation, as it prevents claimants from indefinitely extending the limitation period by pointing to unremoved contamination. The decision also provides an authoritative restatement of when nuisance is properly characterised as continuing — namely, where there is repeated activity or an ongoing state of affairs outside the claimant’s land causing regular undue interference — confirming that this is in fact the ordinary form of the tort of private nuisance, for which injunction is the standard remedy.
Verdict: The appeal was dismissed. The Supreme Court unanimously held that the oil spill was a one-off event giving rise to a single cause of action in private nuisance, not a continuing nuisance. The cause of action accrued when the oil first affected the claimants’ land, and the limitation period was not extended by the continuing presence of the oil on that land.
Source: Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16
