Okpabi & Ors v Royal Dutch Shell Plc & Anor

Interveners:-

(1)        The International Commission of Jurists

(2)        The Corporate Responsibility (CORE) Coalition Limited

(3)        Corner House Research

LORD HAMBLEN: (with whom Lord Hodge, Lady Black and Lord Briggs agree)

I          Introduction

1.                  This is a jurisdiction appeal which raises the question of whether the claimants have an arguable case that a UK domiciled parent company owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company as a necessary and proper party to the proceedings.

2.                  A similar issue was addressed in the recent Supreme Court decision of Lungowe v Vedanta Resources plc [2019] UKSC 20; [2020] AC 1045. It might reasonably have been expected that the guidance provided by that decision would resolve this appeal without the need for a hearing. That proved not to be the case, but Vedanta is very relevant to both the procedural and the substantive issues raised on this appeal.

3.                  The appeal concerns two sets of proceedings, the Ogale proceedings and the Bille proceedings. In the Ogale proceedings the appellant claimants are a Nigerian farming and fishing community of approximately 40,000 individuals in Rivers State, Nigeria. The claim is brought by the leadership of the Ogale Community, namely the King, HRH Emere Godwin Bebe Okpabi, and the Council of Chiefs, suing both for themselves and in a representative capacity on behalf of the people of the Ogale Kingdom. In the Bille proceedings the appellant claimants are 2,335 individuals who live in the Bille Kingdom, a remote riverine community in Rivers State, Nigeria.

4.                  The claims allege that numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the appellants’ communities. The appellants allege that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is said that as a result of the spills, the natural water sources in the appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

5.                  The appellants’ case is that the oil spills were caused by the negligence of the pipeline operator, the second respondent, The Shell Petroleum Development Company of Nigeria Ltd (“SPDC”), a Nigerian registered company. It operated the oil pipelines and ancillary infrastructure on behalf of the unincorporated joint venture between the state-owned Nigerian National Petroleum Corporation (“NNPC”), Total E&P Nigeria Ltd (formerly Elf Petroleum Nigeria Ltd and a subsidiary of Total, “Total E&P”), Nigerian Agip Oil Company (“NAOC”, a subsidiary of ENI) and SPDC. The percentage participating interests of…