Shell fails to block ‘all-spills’ case over Niger Delta pollution

Nigerian communities suing Shell over pollution in the Niger Delta will be allowed to argue that systemic failures caused oil spills that cannot individually be identified.

Nigerian communities pursuing Shell over extensive oil pollution can seek to prove that failures in the operation of pipelines and other infrastructure caused all relevant spills in their area, rather than limiting their case to specific, identifiable incidents.

Handing down her decision in London on 10 September, Mrs Justice Lambert rejected an attempt to prevent claimants from the Bille community from pursuing what they call their “all-spills” case. She held that it was sufficiently detailed to proceed to a liability trial beginning in May 2027 and did not amount to an impermissible change from the case they had previously advanced.

The background

The case concerns crude oil spills between 2011 and 2013 from pipelines, wellheads and other infrastructure in the Niger Delta. The claimants say natural water sources were contaminated and large areas of mangrove forest destroyed. Four sets of proceedings were brought between June 2015 and January 2017 by individuals and communities from Bille and Ogale. This judgment concerns only the Bille claims.

The first four years of litigation were dominated by Shell’s challenge to the English courts’ authority to hear the claims. That tactic met its end in February 2021 when the Supreme Court ruled in Okpabi v Royal Dutch Shell that the claimants had an arguable case against the UK parent company, allowing the litigation to proceed in England.

Attention then turned to causation. In April 2022, Mrs Justice O’Farrell described the pleadings as a “global claim” because individual claimants had not connected the damage they suffered to particular spills. Such a claim was permissible, she said, but could fail altogether if the claimants could not prove it in its entirety.

In November 2023, Mrs Justice May found that the claimants had still not explained causation in sufficient detail and concluded that the proceedings should be managed as global claims unless and until a more specific case was produced.

The claimants appealed and, on 6 December 2024, the Court of Appeal ruled that the court could not force them to pursue a global claim when they said that was not their case. It nevertheless made clear that, before trial, they would have to set their case out in enough detail for Shell to understand and answer it.

Following further disclosure, the claimants amended their pleadings in June 2026. They identified 106 spills – 60 recorded by Shell and another 46 which they say their own forensic work uncovered – but also sought to hold Shell liable for pollution that could not be traced to any of those identified spills.

The arguments

The claimants argued that failures throughout Shell’s operation of the infrastructure caused all the relevant spills. Where damage could not be connected to one of the 106 identified incidents, they wanted the judge to infer that it resulted from another, unidentified spill caused by the same failures. They said a court could infer a connection between proven wrongdoing and proven damage without having to reconstruct every event in between. They also argued that some gaps in the evidence resulted from Shell’s own failures to detect leaks and maintain records, and from the loss or destruction of relevant material.

Shell did not object to the claims based on the 106 identified spills. It argued, however, that the claimants had previously said they would connect particular damage to particular events and should not be allowed to change course so close to trial.

It also said claims based on unidentified spills would be difficult to defend because it could not investigate what had happened and show, for example, that a spill resulted from theft or illegal refining rather than any failure on its part. Different legal rules could apply depending on the infrastructure involved, while uncertainty over when a spill occurred could hamper a limitation defence.

The decision

Mrs Justice Lambert rejected Shell’s objections. The all-spills argument was not a material departure from the claimants’ previous case. Earlier hearings showed that they had long contemplated asking the court to infer from systemic failures and the location of pollution that Shell was responsible even when a particular spill could not be identified.

Nor did the judge accept that the case had to succeed or fail as a whole. If the claimants failed to establish Shell’s responsibility for one category of spill, they could still succeed over others.

The judge also rejected Shell’s argument that the case would be unfair or impossible to try. The liability trial will examine all 106 identified spills, covering different infrastructure, locations and possible causes. The court can then decide whether that evidence justifies drawing the same conclusions about unidentified spills. So, if the evidence shows Shell was responsible for most of the identified spills and reveals no other likely source of the pollution, the claimants’ case will be substantially stronger.

The judge also allowed allegations supporting a claim for aggravated damages to be dealt with during the liability trial. The claimants allege that the defendants knowingly relied on false or misleading assertions during the earlier challenge to the English proceedings and that relevant data and documents were deleted or destroyed. These allegations have not been determined and will be contested.

The liability trial is due to begin on 4 May 2027.

Reaction

Matthew Renshaw, a partner at the claimants’ law firm Leigh Day, commented: “Shell’s attempts to frustrate the progress of these claims has now reached a dead end and the case will now proceed to trial in full. Our clients are pleased that the High Court has recognised the importance of resolving whether Shell’s witnesses gave false and/or misleading evidence to the English Courts in an attempt to prevent their claims from proceeding.” 

Renshaw concluded: “This judgment also sets an important precedent for other environmental cases involving multiple polluting events. It confirms that claimants can apply a common-sense approach about the harm caused by a polluter without needing to identify each and every incident of pollution and link that to a specific harm.” 

The parties

In Alame and others (claimants) v Shell and others (defendants), the claimants were represented by Phillippa Kaufman KC and Catherine Arnold of Matrix Chambers, Anneliese Day KC of Fountain Court Chambers, Joshua Jackson of Doughty Street Chambers and Abe Chauhan of Blackstone Chambers, instructed by Leigh Day. The defendants were represented by James Willan KC of Essex Court Chambers, instructed by Debevoise & Plimpton.