4.2 The Shell (Nigeria) Case: 2017 EWHC 89 (TCC) (January 2017)
The case concerned a group action, brought by His Royal Highness Emere Godwin Bebe Okpabi, representing 40.000 individuals, all Nigerian citizens, who were claiming damages for environmental damage that had resulted from oil spills from pipe lines and infrastructure in and around Bille Kingdom in Nigeria. The claims were brought against both the parent company (RDS) based in the UK and the subsidiary (SPDC) based in Nigeria and the case concerned the question of whether there was jurisdiction for these claims in the UK court.
With regard to the claim against the parent company (Royal Dutch Shell, RDS), the court acknowledged that prima facie there was jurisdiction on the basis of art 4 (1) in the Brussels Regulation and also acknowledged, by reference to the case Owusu v. Jackson (2005) QB 801, that the claim could not be dismissed on the basis of forum non conveniens. However, the court found that athe requirements in the UK national set of rules “Practice Direction 6B” referred to above must also be fulfilled.
The court found that: “Neither the terms of the Recast Regulation, nor the case of Owsusu v. Jackson removes that as a step to be considered…”(1) Para 69. In other words, although there was prima facie jurisdiction for the claim against RDS based on the Brussels I Regulation, the case against RDS could still be dismissed if the court found that there was no “real issue“ between the parties. Accordingly, the court examined the extent to which it must be assumed that the plaintiffs would be able to succeed with a claim against RDS. The examination of the substantive law issues in this regard is detailed and goes in depth. The court reached the conclusion that the claims against RDS would fail(2) Para 122. In other words, there was no “real issue” between the parties. For that reason, the claims against RDS would not proceed before the English court.
With regard to the claim against the subsidiary (SPDC), this matter became straightforward for the court. Since the “anchor claim” against RDS had been dismissed, the claim against SPDC was also dismissed. Thus, the court did not need to address the issue of whether SPDS was a “necessary and proper party” to the claim. The court simply stated: “ Absent the existence of proceedings on foot in England against RDS, there is simply no connection whatsoever between this jurisdiction and the claims brought by the claimants, who are Nigerian citizens, for breaches of statutory duty and /or in common law for acts and omissions in Nigeria, by a Nigeria Company” (3) The judge stresses however, that he finds that this case can be distinguished from the Vedanta case, since in Zambia there is no access to justice. However, the theme of “access to justice” does not seem to form part of the premises for the decision, cp. The case Connelly v. RTZ Corp. (1998)1 A.C. 854 (HL).