London’s High Court has ruled that two polluted communities in the Niger Delta cannot file a lawsuit against supermajor Shell in English courts, prompting an immediate appeal.
The court rejected claims that Shell owed a duty of care to the Nigerian claimants allegedly impacted by the activities of its local subsidiary, Shell Petroleum Development Company (SPDC).
The judge concluded that Shell has no legal responsibility for the pollution of the Bille and Ogale Nigerian communities, and held that the claim against the Anglo-Dutch parent company and Shell Nigeria could not proceed.
The ruling followed two claims raised against Shell, one brought on behalf of 2335 individuals from the Bille Kingdom, who are mostly fishermen who claim their environment has been blighted by oil spills, and a second one brought on behalf of the 40,000 members of the Ogale community, who say they have suffered repeated oil spills dating back to at least 1989.
The communities were trying to bring the case to London believing that a UK court was better equipped to hold Shell accountable to the “systematic pollution” caused by its subsidiary, amid fears they would not get the “justice” they seek from a court in Nigeria.
The judge said in his ruling that “Shell is not operating the same business as SPDC”. While he noted that the region of Nigeria is “one with enormous difficulties”, the case is for local jurisdiction and not a UK court.
He added that the case brought forward by the claimants was also “extremely thin, bordering on sketchy”, and that there was “simply not evidence at all”.
SPDC’s general manager for external relations Igo Weli said following the ruling: “The court rightly decided these claims should be dealt with by the Nigerian courts.”
“Both Bille and Ogale are areas heavily impacted by crude oil theft, pipeline sabotage and illegal refining, which remain the main sources of pollution across the Niger Delta. The judge correctly decided that the holding company, Shell, had no legal responsibility for harm to the communities in the Niger Delta caused by criminal interference in Nigeria with the operations of a joint venture in which the Nigerian government owns a majority interest,” Weli said.
“Litigation in courts unfamiliar with the law and realities on the ground ultimately does nothing to address the real problem in the Niger Delta: widespread pipeline sabotage, crude oil theft and illegal refining. SPDC continues to play an active role in the search for solutions to these complex issues,” he added.
Lawyers for the communities, however, said they will launch an appeal, claiming the decision was made “at an early stage in the litigation, before any documents were disclosed and without hearing oral evidence from witnesses about the relationship between Shell and its Nigerian subsidiary”.
Daniel Leader, the lawyer representing the communities, added that the judgment “was inconsistent with recent decisions of other European courts”, claiming that both the European Court of Justice and the Dutch Court of Appeal have, in recent years, ruled that parent companies should be held accountable for their subsidiary’s conduct.
“It is our view that the judgment failed to consider critical evidence which shows the decisive direction and control Shell exercises over its Nigerian subsidiary. It is also inconsistent with recent judgements of the European Court of Justice and the Dutch Court of Appeal,” Leader said.
King Okpabi, from 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.”
"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.”
“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,” spokesman of the Bille community, Chief Temebo, added.
At the end of last year, research from human rights group Amnesty International claimed that multiple oil spill sites in the Niger delta are still polluted, despite claims from Shell that it had cleaned these up.
Amnesty claimed that “four fields (Bomu Maniforld, Barabeedom, Okuluebu – Ogale, Boobanabe) remain visibly contaminated”.
Shell, which operates around 50 oilfields and 5000 kilometres of pipelines in the Niger Delta area, has previously admitted to 1693 spills leading to more than 350,000 barrels of crude oil being lost since 2007.
The company has repeatedly said that most oil spills and pollution are caused by illegal activity, such as people stealing oil from pipes rather than poor maintenance.