1. INTRODUCTION
English nuisance law is an area of tort law which remedies interferences with the use and enjoyment of land in accordance with the principle of ‘good neighbourliness’.Footnote 1 For many centuries, it has tackled air and water pollution, with one commentator characterizing it aptly as ‘among the earliest forms of environmental protection the world has known’.Footnote 2 English nuisance law has historical importance as a mode of remedying industrial-scale pollution across 40% of the world’s territory during the height of the British empire, often ‘supplementing’ local laws and regulations to this end.Footnote 3 Against this backdrop, this article examines a current problem: English judges sitting in English courts hearing ‘foreign’ nuisance claims of an environmental nature.Footnote 4
The focus of the discussion is the ongoing extraterritorial nuisance litigation based on the exploitation of oil in the Niger Delta by Shell Petroleum Development Company of Nigeria Ltd (SPDC) and Royal Dutch Shell Plc (Shell)Footnote 5 in the English courts (the Shell litigation). This litigation began with a claim brought by 15,000 members of the Ogoni people, whose land and livelihoods were (and continue to be) damaged by oil spills associated with the defendant’s works in 2008 and 2009. The claim was initially brought against both Shell and its Nigerian subsidiary, SPDC, in respect of liabilities under English law (in the Shell case) and Nigerian law (in respect of SPDC) but the parties agreed that it would proceed in respect of the subsidiary alone. The claim was settled after a hearing of preliminary issues in The Bodo Community and Others v. Shell Petroleum Development Company of Nigeria Ltd.Footnote 6
Two further significant group claims were commenced in 2015 by inhabitants of the Ogale and Bille communities, respectively.Footnote 7 The claims are against both Shell at its London address and the subsidiary at its address in Nigeria, for which leave of the court to serve the claim out of jurisdiction was sought and obtained.Footnote 8 On this occasion, in contrast to Bodo Community, the parties have been unable to agree on the jurisdiction of the English court in respect of the subsidiary. While the claims against Shell are based on the party’s domicile in England,Footnote 9 the jurisdiction of the English court in respect of the Nigerian subsidiary is contested.
With so much attention given to the ruling in Kiobel v. Royal Dutch Petroleum Corporation,Footnote 10 in which the United States (US) Supreme Court rejected jurisdiction on the basis of a pre-presumption against the extraterritorial application of the US Alien Tort Statute,Footnote 11 it is easy to overlook the fact that the principles and rules relating to extraterritorial litigation are grounded in national legal systems, and thus may differ from country to country. Thus, putting the brakes on the once claimant-friendlyFootnote 12 US approach does not necessarily close the door to other national paths within private international law.Footnote 13 It is true that US law for some time has been ‘the main engine for transnational human rights and the environment litigation’,Footnote 14 but alternatives are available in other jurisdictions.Footnote 15 This article explores the extent to which the Shell litigation helps to elucidate an alternative national approach to questions of jurisdiction, based both on the mandatory rules of jurisdiction for EU Member States under the ‘Brussels system’Footnote 16 and, more specifically, on Britain’s unique common law constitution, which, it is argued, differs from the US with regard to the nature and strength of the presumption against extraterritorial jurisdiction.
The analysis begins in the next section with a general overview of the jurisdictional rules in the European Union (EU) and in England and Wales. We make a particular point of distinction between claims that originate as of right (when served on a party at an address in England or Wales)Footnote 17 and those that may be served on the defendant abroad only at the discretion of the court. We then examine this distinction with regard to environmental tort cases. Section 3 considers service-as-of-right cases, especially the ‘toxic tort’ cases Connelly Footnote 18 and Lubbe,Footnote 19 in which the court ruled that English jurisdiction was appropriate despite not being the forum conveniens in terms of satisfying the ‘ends of justice’.Footnote 20 Section 4 considers recent discretionary jurisdiction cases, including Cherney,Footnote 21 and Kyrgyz Mobil,Footnote 22 which have been criticized on the grounds of exorbitant jurisdiction, but which may prove relevant to private international nuisance claims where a fair trial would be difficult in the more convenient forum. Section 5 considers the enforceability of remedies awarded in extraterritorial tort litigation, particularly the injunction as a coercive remedy. We conclude that the English approach to allowing jurisdiction where the case ‘can be more suitably heard for the interests of all parties and the ends of justice’Footnote 23 is a potentially valuable, albeit unilateral, development in transnational environmental law litigation.Footnote 24
2. ENGLISH JURISDICTIONAL RULES IN CONTEXT
There are several normative foundations on which a court may hear ‘foreign’ claims.Footnote 25 One is that there must be a minimum territorial link between the forum country and the facts of the dispute (or one or more of its parties). A territorial link is necessary, so the argument goes, because initiating a private claim involves the assertion of power on the part of the state,Footnote 26 even if this is increasingly symbolic.Footnote 27 This underpins the presumption against the extraterritorial application of the law in cases like Kiobel, where it was ruled that the human rights abuse allegations arising from Shell’s oil enterprise in Nigeria did not ‘touch upon and concern [US territory] … with sufficient force to displace the presumption against extraterritorial application’.Footnote 28 It also informs the general rules of jurisdiction of the Brussels I Recast Regulation,Footnote 29 which revolve around the domicile of the defendant.Footnote 30
A contrasting basis for jurisdiction, independent of and capable of rebutting the territorial presumption, is consent of the individuals involved.Footnote 31 This is based not on state power or authority but on individual autonomy, in the sense given by European philosopher KantFootnote 32 that people can choose where to litigate and that the court will respect that choice as a matter of principle.
A third basis of jurisdiction centres on the rule of law, central to the Western liberal tradition.Footnote 33 A key facet of this is access to justice, sometimes couched in terms of the right to a hearing by a fair and independent tribunal in the determination of civil rights or obligations.Footnote 34 This right exists in various forms in most of the world’s constitutions; in some countries reference is also made to the prohibition of ‘denial of justice’, which is a general principle of public international law.Footnote 35
In England, jurisdiction over actions in personam is determined first by the Brussels system and, if the Regulation does not apply, by the traditional rules of jurisdiction that are said to be residual.Footnote 36 An important aspect of jurisdiction allocated under the Brussels system is that a court with jurisdiction cannot decline jurisdiction in favour of another court. This simplifies jurisdictional battles in court and provides legal certainty for both claimants and defendants.Footnote 37
Under the Brussels system national courts have jurisdiction over those domiciled in the territory of a Member State.Footnote 38 The determination of a defendant’s domicile is carried out according to the national law of each Member State.Footnote 39 In England and Wales this is according to the provisions of the Civil Jurisdiction and Judgments Act 1982, as amended by the Civil Jurisdiction and Judgments Order 2001.Footnote 40 Corporations are domiciled in the place of their statutory seat, central administration or principal place of business.Footnote 41 The Regulation also considers jurisdiction based on consent (implicit or explicit).Footnote 42 Creating a forum on the basis of access to justice was discussed at the time of drafting the Brussels I Recast Regulation,Footnote 43 but was ultimately dismissed.Footnote 44
To elaborate briefly on the consensual basis of jurisdiction – not least because of its importance to the Bodo Community claim – a foreign defendant submitting to the jurisdiction of the court can do so in many ways.Footnote 45 A defendant may submit to the jurisdiction of the court by acknowledging service without applying for an order of the court declaring that it lacks jurisdiction,Footnote 46 or by instructing a solicitor to accept service on its behalf.Footnote 47 Parties can also contractually agree to submit to the jurisdiction of a court to which they would not otherwise be eligible. This is common in international commercial transactions where the parties may wish to choose a neutral forum for the resolution of a potential dispute. If such a jurisdiction clause exists, the court could be persuaded (provided all other factors are present) to grant service on the defendant abroad unless there is a strong reason not to do so.Footnote 48 However, it is not possible to confer jurisdiction consensually beyond the authority of the court.Footnote 49
In the United Kingdom (UK), what falls within the authority of the court is ultimately a matter for the court to determine, but Parliament has set out relevant provisions relating to a number of areas, including tort. Section 30(1) of the Civil Jurisdiction and Judgments Act 1982 (UK) as amended provides:
The jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property.
By its very nature, as a tort to land, nuisance is capable of raising issues of title and possession which are ultra vires the court’s authority.Footnote 50
Under English law, a distinction is drawn between claims originating as of rightFootnote 51 and those originating at the discretion of the court.Footnote 52 Claims can be served as of right on a defendant present in EnglandFootnote 53 in the manner prescribed by the Civil Procedure Rules (CPR).Footnote 54 An English company may be served at its registered office,Footnote 55 while a foreign company may be served either by making service on the person authorized to accept service on its behalf or by service to any place of business within the jurisdiction.Footnote 56 The procedures in CPR Part 6 for service on a company cover alternative methods and places of service.
Where a claim is served on a defendant as of right but the domicile requirement of the Brussels system is not engaged (and thus the regime does not apply), a defendant wishing to have the action heard in a different court must make an application to stay proceedings. The principle on which this application is made is that of forum non conveniens, which is set out by Lord Goff in Spiliada (albeit that this case concerned service at the discretion of the court, contested by the respondent):
The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interest of all parties and the ends of justice.Footnote 57
In terms of the burden of proof, Lord Goff emphasized that:
the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is distinctly more appropriate than the English forum.Footnote 58
Once that burden is discharged by the defendant, the onus shifts to the claimant to establish that the English court, although not the natural forum, is nonetheless the right forum for the purposes of meeting the ‘ends of justice’.Footnote 59 The ‘ends of justice’ may have some broad similarity with the ‘public interest’ as it is relevant in US case law, for example.Footnote 60 However, the English courts are concerned exclusively with the private interests (including rights) of the parties, rather than wider, instrumental calculations bearing on the public at large. So, in this respect the ‘ends of justice’ may have more in common with the Canadian notion of ‘public necessity’,Footnote 61 or even forum necessitatis Footnote 62 introduced as an autonomous ground of jurisdiction in Belgium and the Netherlands following the abolition of the exorbitant bases of jurisdiction based on the plaintiff’s domicile in the forum.Footnote 63 Regardless, the crux of an English court’s inquiry is justice between the parties, in a highly casuistic fashion. In the words of Evans LJ,Footnote 64 the alternative forum must be ‘available in practice to this plaintiff, to have this dispute resolved’.Footnote 65
Moving on to claims served out of jurisdiction which require leave of the court, the rules are set out in CPR r. 6.36 and Practice Direction (PD) 6B. In order to serve a claim on a defendant out of jurisdiction, the prospective claimant must satisfy three cumulative tests:Footnote 66 (i) the claimant must have a ‘reasonable prospect of success’;Footnote 67 (ii) there is a good arguable case that falls within the grounds of the rules;Footnote 68 and (iii) England is the ‘appropriate forum’.Footnote 69 This latter test is fleshed out in a series of leading cases, notably by Lord Goff in Spiliada,Footnote 70 and most recently by the UK Supreme Court in Cherney Footnote 71 and Kyrgyz Mobil.Footnote 72 In general, concepts such as ‘appropriate’ or ‘natural forum’Footnote 73 have developed in the context of torts as undoubtedly pointing to the forum loci delictii where the events leading to the damage took place.Footnote 74 However, this does not prevent exceptional cases from being litigated in a place other than the natural forum because of the unavailability of the forum loci delictii in a practical or legal sense. In VTB Capital Plc v. Nutritek International Corp. & Others,Footnote 75 a case concerning a tort committed in England between foreign parties, the court unanimously approved the application of the Spiliada test for determining whether England was the appropriate forum and found that Russia was distinctively the more appropriate forum. In so doing, it rejected the previously held view that the place where the tort was committed was always and clearly the most appropriate forum.Footnote 76 The English courts, it stated, will not approach a case by way of applying presumptions but rather by considering all relevant factors.
Where leave is granted under CPR r. 6.45, the claim form must include a copy translated into the official language of the country in which it is to be served. Here, the onus is on the claimant to satisfy the court that England is the right jurisdiction. The English courts have sometimes strongly expressed a concern that the English jurisdiction is ‘exorbitant’, which raises delicate diplomatic issues relating to other sovereign nations.Footnote 77 For example, Scott LJ in George Monro Ltd v. American Cyanamid & Chemical Corporation mentioned that:
[s]ervice out of jurisdiction at the instance of our courts is necessarily prima facie an interference with the exclusive jurisdiction of the sovereignty of the foreign country where the service is to be effected. I have known many continental lawyers of different nations in the past criticize very strongly our law about service out of jurisdiction.Footnote 78
Words used by the courts to describe limits on the exercise of discretion to serve out of jurisdiction include the need for ‘considerable care’,Footnote 79 ‘extreme caution’,Footnote 80 ‘forbearance’,Footnote 81 and ‘with discrimination and scrupulous fairness’.Footnote 82 These expressions favour neither one nor the other party; they are about doing justice between the parties viewed in the round. Moreover, the very possibility of exorbitant jurisdiction shows that English law is willing at least to consider coming to the aid of a foreign claimant seeking access to justice to a degree that is distinctive, and perhaps even unique.
Lately the courts have appeared rather less cautious in the face of diplomatic sensitivity than in the past. In Cherney Footnote 83 there was an almost nil connection with EnglandFootnote 84 and yet the Commercial Court found allegations that the safety of the claimant would be at risk should he put a foot in Russia enough to justify service abroad and thereby institute the jurisdiction of the court.Footnote 85 Concerns with the ‘ends of justice’ in respect of Mr Cherney’s personal safety and of his prospect to obtain a fair trial in Russia were the fundamental drivers of this decision.Footnote 86
Similarly, the UK Supreme Court ruling in Kyrgyz Mobil Footnote 87 appears to push back from some of the cautionary remarks of the courts in times past. Here, the Privy Council, sitting on appeal from the High Court of the Isle of Man, allowed service out of jurisdiction in respect of a claim the natural forum of which was in Kyrgyzstan ‘on the grounds that the risk that a Kyrgyz court would deliver injustice overwhelmed the ordinary operation of the Spiliada test’.Footnote 88 The Privy Council addressed, and rejected, the defendant’s argument that comity required the court not to pass judgment on the adequacy of another state’s courts (in that case the courts of Kyrgyzstan):
The true position is that there is no rule that the English court … will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence.Footnote 89
While Cherney and Kyrgyz Mobil have been criticized as exorbitant,Footnote 90 there is clearly a tension between comity and the ‘ends of justice’, which the courts address on a fact-sensitive, casuistic basis.
In Abela v. Baadarini,Footnote 91 where the main issue was the mode and timing of service out of jurisdiction, Lord Sumption suggested a new language to qualify the courts’ powers in extraterritorial cases. The defendant in this case resided in Lebanon – which is neither a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965Footnote 92 nor a party to any bilateral convention on service of judicial documents – and the trial judge had allowed service abroad by an alternative method: at the address of the defendant’s solicitor. The UK Supreme Court held that the judge had been right under CPR r. 6.15(2) (to retrospectively permit service by an alternative method of a claim form on the defendant in Lebanon) on the basis that it was considered that there was a ‘good reason’ to make the order. The Court of Appeal overturned the trial judge’s decision to serve on the basis that it would ‘make what is already an exorbitant power still more exorbitant’.Footnote 93 The Supreme Court subsequently restored the finding of the trial judge on the basis that the language of ‘exorbitancy’ was old-fashioned and unrealistic. Lord Sumption gave a number of reasons why it ‘should no longer be necessary to resort to the kind of muscular presumptions against service out [of jurisdiction] which are implicit in adjectives like “exorbitant”’.Footnote 94 Reasons included the notion that extraterritorial litigation ‘is a routine incident of modern commercial life’,Footnote 95 together with (and reflected by) the growing number of multilateral agreements for cooperation in civil matters beyond commercial matters.Footnote 96
Yet, the trend towards liberal exercise of discretion to serve out of jurisdiction should not be overstated. The court in Cherney went to some length to clarify that it was not passing general judgment on the Russian legal system or its standards of administration of justice. Indeed, the same judge, Lord Clarke, distinguished the decision (to which he had contributed) in Yugraneft v. Abramovich Footnote 97 by holding that a fair trial was possible in Russia between different parties and on different facts. Moreover, some subsequent cases in which the claimant sought to establish the jurisdiction of the English courts and discard that of the ‘natural forum’ based on considerations of the ‘ends of justice’ have been dismissed by the English court on the basis that a case has not been made out that justice is likely to be denied locally.Footnote 98
The debate arising from Cherney and Kyrgyz Mobil echoes Lord Denning’s expansionist dictum in the Court of Appeal in The Atlantic Star:
No one who comes to these courts asking for justice should come in vain. The right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this ‘forum shopping’ if you please, but if the forum is England, it is a good place to shop in both for the quality of the goods and the speed of service.Footnote 99
Yet, the judgments in Cherney and Kyrgyz Mobil are arguably of a different and nuanced order. There is no glib invitation to forum shop in England. The English court is not accepting jurisdiction on the basis that its justice process is the world’s best (as conveyed by the cliché ‘Rolls Royce’ justice).Footnote 100 Rather, it is accepting jurisdiction because the common law recognizes a fundamental right to a fair hearing for anyone who persuades the English court that such a hearing is impossible locally.Footnote 101 In this way, the ruling can be considered to be consistent with the principle of legality, which found influential expression in the writing of Dicey.Footnote 102
Indeed, it is probably no coincidence that A.V. Dicey is the author of the leading late-Victorian private international law text (Dicey preferred ‘conflict of laws’),Footnote 103 published almost a decade after his seminal constitutional study. Dicey, the ‘constitutional lawyer’, wrote that ‘[o]ur constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law’.Footnote 104 With specific reference to the right of access to justice and to other common law rights, Dicey wrote that these are defined and enforced by the judiciary, on the basis that they are the source of the constitution.Footnote 105 Dicey compared this with codified European constitutions, in which the code was the positive source of rights (such that these rights could be limited or extinguished through reform of the code). Owing to their primordial or at least foundational status under Diceyan theory, they cannot be taken away by legislation without a ‘revolution’.Footnote 106
Dicey did not elaborate on the ‘good and bad’ of this idiosyncratic constitutional arrangement, but some of it is obvious and evidenced in the case law above. What is ‘good’ about the arrangement is its responsiveness to individual circumstances. What is ‘bad’ is that the law lacks predictability. Thus, while Kyrgyz Mobil does appear to provide minimally clear guidance as to the onus being on the foreign claimant to satisfy the court that the natural forum cannot provide a fair hearing, cases of this kind will necessarily turn on their merits.
The constitutional context of English private international law is also relevant to the role played by leave of the court in both public law (judicial review) and private international service-out-of-jurisdiction claims. Claimants seeking to hold a public authority to account in terms of the rule of law, by way of judicial review, may not bring a claim as of right. They must first obtain the permission (leave) of the court for a full hearing. The permission hearing is usually an ex parte process which answers to the need for the court to establish that the claimant has standing to bring a claim and that there is an arguable case on the merits.Footnote 107 The overwhelming majority of claims fall at this hurdle; therefore leave serves the important function of affording access to a court while filtering out ‘weak’ claims. In a private international law context, leave has the same function, except that it touches also on relations between, as well as within, sovereign nations.
3. EXTRATERRITORIAL TORT CLAIMS: JURISDICTION ‘AS OF RIGHT’
Claims served as of right on the defendantFootnote 108 may be contested by the defendant making a case as to why the proceedings should be stayedFootnote 109 (claims served at the discretion of the court, on the initiative of the claimant, are considered in the following section). The discretion of the court and scope for staying actions was firmly restricted by the ruling of the Court of Justice of the European Union (CJEU) in Owusu v. Jackson,Footnote 110 which clarified that English courts may still stay actions when the defendant is not domiciled in a state within the Brussels system and service has been effected as of right, for example, on a foreign company not domiciled but present in England.Footnote 111
This section draws on ‘toxic tort’ cases, namely Connelly and Lubbe, in which the English domiciled defendants sought a stay of proceedings on the ground of forum non conveniens under the Spiliada ruling. These cases today could not be subject to the same jurisdictional challenges, as they could not now be stayed on the ground of the EU domicile of the parent company. However, they remain highly pertinent to the discussion of the ongoing Shell litigation. In particular, they contain guidance on the ‘ends of justice’ test as it applies to the exercise of court discretion to hear tort claims with a foreign dimension.
In Connelly, the claimant (domiciled in Scotland) alleged injury while working in a uranium mine in Namibia operated by a South African-registered company, Rossing Uranium Ltd (RUL). The company was a subsidiary of English-registered RTZ Plc. The claimant pursued the parent company, alleging that it was negligent in devising the subsidiary company’s health and safety policy. The defendant sought a stay of proceedings within the framework of the forum non conveniens principle set out in Spiliada. Delivering the lead judgment, Lord Goff noted that the reason for the choice of parent company as a defendant over the subsidiary was that the claim could thereby originate as of right, and thus the onus fell on the defendant, if it wished, to establish that the claim should be stayed for want of appropriate forum.Footnote 112 The critical attraction of the English civil justice system was the availability of a firm of solicitors who would be prepared to undertake the claim on a no-win no-fee basis.
No doubt their [the defendant company’s] domicile in this country, coupled with the availability of financial assistance here, has encouraged him [the claimant] to select them as defendants in place of R.U.L. But I cannot see that that of itself exposes the plaintiff to criticism. If he was going to sue these defendants, this was an appropriate jurisdiction in which to serve proceedings on them. It is then for the defendants to persuade the court, as they are seeking to do, that the action should be stayed on the ordinary principles of forum non conveniens.Footnote 113
The court held that the defendant company had discharged the first stage of the Spiliada test: a Namibian court was the appropriate forum, as it was the forum where the injury was alleged to have been suffered and where many of the allegedly tortious acts causing the injury occurred. The onus then switched to the claimant to establish that ‘substantial justice cannot be done in the appropriate forum’.Footnote 114 The lack of availability of legal aid and other assistance in Namibia was not in itself enough to ‘oust’ the natural forum, but it became so when situated in the wider context of the legal and evidential complexity of the claim. The House of Lords agreed with the analysis of Lord Bingham MR in the Court of Appeal that the court was faced with a ‘stark choice’ between a natural forum where there never could be a fair hearing and one which, while ‘not the most appropriate’, made a hearing possible.Footnote 115
Lord Hoffmann added the qualification that he would not have found for the claimant were it not for the fact that the claimant was no longer resident in Namibia. He doubted that a Namibian, or a Scotsman residing in Namibia, had a ‘legitimate expectation’ to sue an English company in England in respect of injury sustained in Namibia.Footnote 116 However, that does not appear to have been supported by other Law Lords, nor was it followed in Lubbe (discussed below). In that case, 3,000 South African-resident workers in the asbestos mining industry were able to sue in England, notwithstanding that South Africa was the appropriate forum.
In Lubbe, like Connelly, the claimant’s choice of forum was driven by the practical consideration of the availability of legal expenses support in England. The claimant provided evidence of a ‘clear, strong and unchallenged view of the [South African] attorneys … that no firm of South African attorneys with expertise in this field had the means or would undertake the risk of conducting these proceedings on a contingency fee basis’.Footnote 117 There was further evidence, to which the court attached some weight, that the South African civil justice system lacked the experience with ‘group proceedings’ that the English system had.Footnote 118
Applying this to the position following the enactment of the Brussels I Regulation, the inability of the court to stay an action commenced against a defendant domiciled in a state subject to the Brussels system enabled the Trafigura Footnote 119 and Monterrico Footnote 120 litigation to proceed without the habitual jurisdictional battles.Footnote 121 Similarly, in Bodo Community a claim was brought against both Shell and its Nigerian subsidiary.Footnote 122 Part of the attraction of suing Shell was that, as a company domiciled in England according to Article 60(1) of the Brussels I Regulation, it enabled not only the claim to be served as of right on the parent company at its English address with service at this address in the subsidiary, but also – unless the subsidiary could prove that there was no merit in the claim against the parent companyFootnote 123 – the claim against it could not be stayed on grounds of forum non conveniens. The Bodo Community litigation proceeded on the agreement between the parties that the subsidiary company would submit to the English forum on condition that the local Nigerian law was applied and that the claim against Royal Dutch Shell (the parent company) was abandoned.
The concern with the tort of nuisance – a tort against land – meant that the High Court, at the trial on preliminary issues of law in Bodo Community, was invited to rule on the statutory exclusion of jurisdiction over questions of title to land, or the right to possession of land, located outside the UK. In Polly Peck it was held that whether a question was principally one of title was a matter of fact and degree.Footnote 124 The judge in Bodo Community ruled that this could not be resolved at a preliminary stage but nevertheless offered guidance as to the kind of facts which might lead to some of the claims not being heard, such as a dispute over whether the claimant was a tenant of land, and also the extent of a bailiwick of a chief, king or headman suing in a representative capacity.Footnote 125 Judge Akenhead hinted that some of the claims would have failed on these points had the case not been settled after the preliminary issues hearing.
A further noteworthy feature of the Bodo Community judgment and the subsequent cases of Bille and Ogale Footnote 126 is that of the substantive applicable law. In Bodo Community the English court applied Nigerian law as agreed by the parties.Footnote 127 Part of the preliminary hearing thus involved interpretation of the Nigerian law. The judge heard expert evidence of the correct interpretation of Nigerian law by two judges of the Nigerian Supreme Court, one for the claimants (Justice Oguntade) and one for the defendant (Justice Ayoola). Understandably, the judge expressed ‘trepidation’ at points where he disagreed with each of these experts.Footnote 128 Even if the parties had not agreed on the applicable law, it is likely that the court would have applied Nigerian law to the conduct of the subsidiary for acts taking place in Nigeria, pursuant to sections 11, 12 and/or 14 of the Private International Law (Miscellaneous Provisions) Act 1995,Footnote 129 and pursuant to Articles 7 and/or 4 and/or 26 of the Rome II Regulation.Footnote 130
In conclusion, it is now much simpler to bring a case in the courts of any EU Member State without fear of protracted forum non conveniens jurisdictional battles. The remaining issues in such cases, and in those involving non-EU domiciled co-defendants like Bodo, Ogale and Bille, involve the determination by the court that the claim has merit against the European domiciled (parent) company and that the sole aim is not of suing the foreign domiciled subsidiary as a co-defendant or necessary or proper party.Footnote 131 For cases brought as of right against companies which are present but not domiciled for the purposes of the Brussels system, English courts still retain the ability to stay proceedings on the grounds of forum non conveniens.
4. EXTRATERRITORIAL CLAIMS AT THE DISCRETION OF THE COURT
The Bodo Community case eventually proceeded in the High Court consensually. By contrast, in the most recent cases, involving the Ogale and the Bille communities, the subsidiary has contested the High Court’s jurisdiction. In a landmark (but as yet unreported) ruling, on 2 March 2016, leave was granted for these latest claims to proceed against Shell Nigeria Ltd.Footnote 132 These are the first occasions on which nuisance proceedings have been originated at the discretion of an English court.
In the absence of a reported decision on the subject, it is difficult to comment on the reasoning of the court in granting leave. However, as explained above, there are well-established principles with regard to meeting the ‘ends of justice’ within the forum non conveniens test that are capable of displacing the natural/local forum (Nigeria). One consideration is whether the Nigerian courts are any better equipped than the courts in South Africa (in Lubbe) to hear a complicated group claim. Nigerian legal practitioners would struggle to pursue a contingent fee claim on the scale of Bodo Community with confidence, as acknowledged (in relation to South Africa) in Lubbe. Thus, the Ogale and Bille communities in this new phase of Shell extraterritorial nuisance litigation may not have ‘chosen’ the English court jurisdiction over the local court jurisdiction; rather, the choice in these circumstances was between having a hearing or not.Footnote 133
It is helpful to reflect on the specific nature of local obstacles to access to justice that could in principle justify extraterritorial jurisdiction in these and similar circumstances in the future. Rather than rely on broad notions of ‘obstacle’, a pertinent distinction can be drawn between impediments to access to justice based on ‘technical’ considerations (concerning fees, group claims and other arrangements regarding the administration of civil justice), and those of a more ‘political’ character (concerning discrimination and/or corruption in the national justice regime). The former type describes the situation in Connelly and Lubbe, where the court attributed considerable weight to the absence of the local availability of financial assistance (in Connelly)Footnote 134 and the capacity to handle a complex group claim (in Lubbe). The latter describes the situations in Cherney and Kyrgyz Mobil.Footnote 135 The ‘technical’ and the ‘political’ obstacles to the ‘ends of justice’ argument are not mutually exclusive, but the distinction is, nevertheless, important. The latter more deeply engages the principle of comity, in that it is one thing to say that a foreign civil justice regime lacks the technical competence of some of the world’s most experienced regimes and another thing altogether to say that it is sometimes corrupt.
Applied to the Ogale and Bille claims, evidence is being put forward by the claimants’ legal representatives which covers both kinds of obstacle. With regard to technical obstacles, the following passage from a witness statement is illustrative:
Most of the Claimants in this case are poor, rural Nigerians who live as subsistence farmers or fishermen. As a result, it may well be difficult for them to obtain suitably qualified legal representatives. There is no legal aid available in Nigeria for claims of this nature, which means that there is a stark inequality in resources between the Claimants and the Defendants in this case. Whilst claims of this nature can sometimes be funded using damages-based agreements or similar types of agreement, many Nigerian lawyers will additionally require payment whilst a case is progressing, including for drafting submissions or attending hearings. This is particularly true where a case is complex or where the lawyer is required to attend court frequently.Footnote 136
Further, it is alleged that the civil justice system is subject to lengthy delays. In Shell Petroleum Development Corporation (Nigeria) Ltd v. Tiebo, for example, the Nigerian Supreme Court in 2005 handed down judgment 17 years after proceedings were started.Footnote 137
At the political level, the obstacles centre on a deep distrust of the local civil justice regime as propping up the nation’s ‘oil oligarchy’,Footnote 138 which was at the forefront of the US litigation in Wiwa,Footnote 139 the unsuccessful litigation in Kiobel, the Bodo Community claim, and is resurfacing in the context of the Ogale and Bille nuisance litigation. Thus, the witness statements make reference to ‘state interference in the course of justice’Footnote 140 which includes ‘a widespread belief … that the Nigerian judicial system is vulnerable to interference and corruption’.Footnote 141
Cutting across the technical-political distinction is a delicate issue of international relations concerning the labelling of shortcomings in local justice in a foreign (in this case English) court. Muchlinski makes a salient point in connection with the removal of the Bhopal claim from the US to the Indian court system, that ‘an admission by the home country [the US] that the host country is the better forum may give legitimacy to host country controls over the firm’.Footnote 142 A corollary of this is that a show of confidence in the local regime – say, the Nigerian justice system – could, in principle, help it to improve and develop resilience. Indeed, whether the argument centres on technical or political obstacles to justice, the courts are necessarily engaging with a field beset with complex international political considerations. Again, Muchlinski captures this well in commenting that judges in this setting are never dealing narrowly with ‘a formal system of rules but a system of national policy implementation … Even where the judges do not intend it, decisions on jurisdiction will be read as political acts’.Footnote 143
The Shell nuisance litigation, and in particular the granting of leave in respect of the Ogale and Bille community claims, will undoubtedly offer considerable encouragement to individuals in other parts of the world who are victims of industrial nuisance in similar circumstances to those of the Niger Delta. Before independence in 1963, Nigeria was a British Protectorate (and before that a territory annexed to Britain). It was under British rule that oil exploitation commenced, and with it Shell’s involvement in the region.Footnote 144 This has remained in the background of the nuisance litigation as has the fact that, after independence, opposition from local farmers and fishermen to Shell’s enterprise escalated.Footnote 145 The suppression of this opposition by Shell and the Nigerian state prompted human rights abuse claims brought before the US courts on the basis of the Alien Tort Statute (Wiwa and Kiobel).
An analogous case study that is helpful in fleshing out some of the potential limits on English court discretion in the present context is that of Palestine and Israel. In Palestine, a former British protectorate like Nigeria, the politics of occupation by Israel and the design of the legal system make access to the local courts by Palestinian nuisance victims as complex, because of the historical and political settings, as those faced by the Niger Delta communities in Nigeria. There are multiple layers to private international law in the Israel/Palestine setting.Footnote 146 Under the terms of the Israeli occupation of Palestine, service of a nuisance claim in a Palestinian court on an Israeli-resident defendant requires the consent of that defendant.Footnote 147 According to Israeli private international rules, a claim against the works (assuming the proprietors withheld consent to proceed in the Palestinian courts) can proceed in the Israeli High Court of JusticeFootnote 148 but, understandably, that may not be the forum in which Palestinians wish the action to be heard. Not only is there a perception among the local Palestinian population of institutional bias in favour of Israeli parties – which may or may not be justified – but there is also a reluctance to endorse one or more of the institutions of the belligerent occupying force (the Israeli national courts) by invoking its civil justice machinery. As one commentator has remarked, litigation of tort claims involving Israeli defendants, before the Israeli courts, can sometimes be interpreted as ‘legal laundering’, by clothing Israeli occupation ‘in a cloak of legality’.Footnote 149
In recent years, a Palestinian human rights organization, Al Haq, has been gathering witness testimony of victims of industrial nuisances with a view to bringing a claim in an ‘international’ or extraterritorial tort action, possibly before the English courts. One of the most high-profile industrial nuisance allegations centres on the Geshuri agrochemical works in Tulkarm.Footnote 150 The works used to be located on the Israeli side of the wall, but they were relocated in occupied Palestine as a consequence of complaints by Israeli neighbours (who sued the company in nuisance in the local court in Israel).Footnote 151 When relocated on the Palestinian side of the wall, the Israeli owners undertook not to operate the works when the wind blew in the direction of Israeli territory. In effect, the works operate only when the wind keeps pollution within the Palestinian territory. As a consequence, it is alleged that the locality is a hotspot for cancer, asthma, eye and respiratory health anomalies.Footnote 152
Thus, as with environmental tort cases such as the Shell nuisance litigation, there are some obvious difficulties for a claimant in these circumstances (against a defendant not present within the jurisdiction or who is not a ‘necessary and proper party’ to an action against a defendant domiciled or present within the jurisdictionFootnote 153 ) to obtain permission to serve the claim out of jurisdiction. The first problem is the fundamental issue of whether, in the absence of one of the grounds or gateways for service out of jurisdiction,Footnote 154 the English (High) Court would be prepared to allow service out of jurisdiction on a foreign defendant, for a wrong committed abroad, purely on the basis of the common law of natural justice.Footnote 155 If that, by no means small, hurdle is to be successfully negotiated, it will have to be on the basis of the unconscionability of having the case heard in Israel within a court system lacking legitimacy in the context of belligerent occupation.Footnote 156 The second hurdle lies in the distinction between the technical and political grounds that the court will consider in establishing whether the ‘ends of justice’ should displace the natural territorial forum. Either way there are challenges. The Israeli High Court of Justice is highly respected worldwide for its judicial professionalism, independence and impartiality. It would appear difficult for the English court to be persuaded that the Israeli court would deny the Palestinian claimants a fair hearing. Equally, in Israel there are opportunities for affordably funding a large group nuisance claim.Footnote 157
Thus, the outcome of Ogale and Bille is of far-reaching significance. It will further illuminate the English court’s willingness to take on extraterritorial nuisance claims. It remains to be seen whether ‘necessity’ or ‘the ends of justice’ can operate as autonomous drivers to facilitate service abroad in the absence of one of the existing jurisdictional gateways.
5. ENFORCEMENT OF NUISANCE REMEDIES IN ENGLISH PRIVATE INTERNATIONAL LAW
The potential enforcement of the court judgment forms an integral part of the forum selection by the parties in private international law cases. In a tort setting, much depends on the remedies that are sought. Nuisance remedies are particularly complex, for while they share many of the characteristics of tort remedies generally (notably damages of a compensatory nature) there are differences of considerable importance from a private international law perspective. In particular, what Lord Goff called the ‘primary remedy’ in nuisance proceedings is not damages but an injunction,Footnote 158 the function of which in this context is to put an end to an ongoing civil wrong involving the use of land. In other words, an injunction requires the wrongdoer to use land ‘rightly’. If it fails to do so, the claimant can bring a claim for contempt of court. In the context of foreign territory, it is hard to imagine how an English court could police a nuisance injunction without risking a diplomatic crisis.
The first consideration to note, therefore, is that nuisance claimants must be realistic about the possible limits on the range of remedies they can expect to obtain if successful in establishing liability. Such realism appears to have shaped counsel’s handling of the case in Bodo Community. Here, the claimants reserved their position on the remedy of an injunction until after the trial on liability. As the case was settled, by what is believed to have been a monetary payment and commitment on the defendant’s part to clean up and restore the damaged environment, no ruling on remedies was made. It would be unwise to speculate on a counterfactual scenario, except to mention that, in principle, were an injunction to have been sought, the defendant would surely have been in a strong (if not unassailable) position to argue that an injunction ought to be withheld on grounds that enforcement in respect of a foreign tort would raise serious issues of comity and exorbitant jurisdiction.
This presupposes that the remedy of damages is more straightforward. Awards for damages against defendants served as of right (present within the jurisdiction) or with assets within the jurisdiction can be enforced automatically. The enforcement of judgments of English courts in Member States of the Brussels system has been greatly simplified by the revision of the Brussels I Regulation. Not only has the exequatur procedureFootnote 159 been eliminated along with the declaration of enforceability,Footnote 160 but (according to the new Article 54) if the remedy granted by the judgment is not known in the enforcing court, this can be adapted to a similar measure that is known. The ease of enforcement within EU territory may be of relevance to potential claimants that seek to benefit from the flexible grounds of jurisdiction of the English court as they exercise the discretion implicit in the Spiliada test for service out of jurisdiction on a foreign defendant knowing that, although the defendant does not have assets in England to satisfy potential damages, the judgment could be enforced in any of the other Member States of the Brussels system.Footnote 161
If the defendant does not have assets in England, the claimant will need to apply to the (High) Court for a certified copy of the judgment,Footnote 162 and present evidence of the original claim, service and, crucially, of whether the defendant objected to the jurisdiction of the court and on what grounds.Footnote 163 Enforcement in other jurisdictions outside the scope of the Brussels I RegulationFootnote 164 will very much depend on the internal law of the country in which the judgment is to be enforced and on the existence of reciprocal enforcement conventions between the UK and the country in which the claimant seeks to enforce the English court decision. Countries with which the UK has such agreementsFootnote 165 may enforce an English judgment by a simplified system of registration. However, one of the impediments to registration and/or enforcement in the foreign jurisdiction may be the consideration that the English court lacked jurisdiction to adjudicate on the matter.Footnote 166 In cases where the English High Court has assumed jurisdiction in an extraterritorial nuisance case, one should wonder whether, paraphrasing Lord Ellenborough, ‘the foreign court [would] submit to such assumed jurisdiction’Footnote 167 and enforce the judgment. The answer to this is ‘probably not’. Attempts to make an English judgment enforceable against foreign defendants not present within the jurisdiction by way of extending the territorial reach of an ex parte order under CPR Part 71Footnote 168 were rejected by the House of Lords in Masri v. Consolidated Contractors. Footnote 169 Their Lordships took a view against extending the extraterritorial reach of enforcement orders, sending perhaps a reminder to potential litigants that orders concerning enforcement are restricted to the place where assets are located, and this factor should be taken into account by parties when starting proceedings in parallel with jurisdiction and choice of law issues.
Nonetheless, the above black-letter law remarks should be situated in a wider socio-legal context concerning the politics of private international law in a tort setting. Of particular relevance is the extent to which transnational tort actions can often serve symbolic rather than compensatory objectives.Footnote 170 For example, in most of the actions under the Alien Tort Statute pursued in the US it is understood that damages have not been collected.Footnote 171 An explanation for this is that civil remedies are sought as a means ‘for providing a measure of self-respect, vindication and recognition for the victims rather than a mechanism of enforcement under international law’.Footnote 172 That does not appear to have been the case in Bodo Community, where the concern was with monetary compensation (out of which legal expenses would be paidFootnote 173 ). However, one can easily imagine that any claim in the setting of the Geshuri works (discussed above in Section 4) might have rights vindication as its priority either as a stand-alone remedy (a statement of wrongdoing by a respected court) or to unlock a settlement in which the works cleans up its process and respects the rights of its neighbours.
6. CONCLUSION
There are many reasons for seeking to litigate an industrial pollution tort claim beyond the so-called natural or home forum within the framework of private international law. In some cases, the search for a different forum is led by the applicable law or the remedies available,Footnote 174 while at other times considerations of access to justice are at play.Footnote 175 Indeed, issues of substantive law and process are often interconnected and combine in the field of tort to make this subject as dynamic as it is. In many cases the choice between different jurisdictions signifies a substantive law advantage to one party or the other. Occasionally the stakes are considerably higher than securing an advantage for one of the parties, in that ‘what is being decided is whether litigation can proceed or not at all’.Footnote 176 In this respect it is not an exaggeration to say that ‘[t]he battle over where the litigation occurs is typically the hardest fought and most important issue in a transnational case’.Footnote 177
Looking ahead to the longer-term development of extraterritorial tort litigation within the framework of private international environmental law in England and beyond, it is instructive to situate the discussion within the context of public international law governing neighbouring states. It is particularly important to think back to, and draw comparisons with, the famous Trail Smelter litigation.Footnote 178 This case of state liability for transboundary harm started out life, before it became a concern of central government agencies, as a private nuisance dispute between farmers and a factory on respective sides of the US/Canadian border. Historical research into the context of the litigation reveals that the interests of the original prospective plaintiffs were somewhat prejudiced by the transformation of the dispute from the private to the public international law sphere.Footnote 179 In particular, the US government did not wish to disclose evidence against the Canadian factory that could also be used against wealth-generating polluting factories operating in US territory, whether by US pollution victims or Mexicans on the other side of the US southern border.Footnote 180 This reinforces the point that tort-based solutions to environmental problems have deep roots historically and that nuisance is, above all, attractive as a means of addressing environmental problems, which bypasses executive bodies in favour of direct access to courts (giving it an ‘unofficial’ character).Footnote 181 This mirrors the trend towards bringing tort cases against corporations for human rights abuses, alleging harm caused by ‘nuisance’ or ‘negligence’ rather than, for example, torture or violation of the right to life.Footnote 182
Bodo Community and the ongoing Shell nuisance litigation in Ogale and Bille can be read, in this light, as an example of private international environmental law coming out of the shadow of its public international law counterpart in an arrangement that is complementary rather than mutually exclusive.
