By Ebi Perekeme
More than 40,000 Nigerians from the Ogale and Bille Communities in the Niger Delta will take their legal fight against Shell to the UK Supreme Court on Tuesday, June 23, 2020.
The case will be heard via video link and will be live-streamed online. The hearing is listed for one day. The communities argue in their legal case that they have been severely affected by years of oil spills from oil pipelines owned and operated by Shell.
Oil spills and pollution from Shell’s operations and their devastating effect on Niger Delta citizens over many decades have been widely documented, including by the United Nations Environmental Programme in 2011, which recommended an urgent clean-up.
The communities have taken their case to the English courts on the basis that Royal Dutch Shell (RDS), which is headquartered in London, is legally responsible for the environmental failures of the Shell Petroleum Development Company of Nigeria (SPDC), a subsidiary of RDS. Leigh Day is representing the two Nigerian communities in claims against RDS and SPDC.
The court proceedings to date have focused on the question of whether RDS can be sued in the English courts for damage caused by its Nigerian subsidiary.
The Supreme Court clarified the law in this area in April 2019 in the case in which Vedanta Resources Plc was held to be arguably liable for the acts of its Zambian subsidiary, the Konkola Copper Mine. Lord Briggs in the Vedanta case held that a parent company could be held to account for the commitments it makes publicly, regarding their subsidiaries and their commitments to the communities they serve.
In granting permission for the Nigerian communities to appeal the ruling that they could not bring their claim in the English courts, the Supreme Court stated that “the law has been adequately clarified in Vedanta, but […] it would be unjust to refuse permission in circumstances where this case might equally have been treated as the lead case.”
The communities’ case was originally heard in the High Court in November 2016. The High Court ruled in January 2017 that RDS was not responsible for the harm because it is merely a holding company which did not exercise any control over SPDC. That decision was appealed and, while the judges agreed that the High Court judgment was flawed, the Court of Appeal held by majority in February 2018 that there was insufficient evidence of “operational control” by RDS to hold it liable.
The claimants contend that the Court of Appeal made significant errors of law, including in finding that the existence of group-wide environmental policies issued by a parent company could never be capable of founding a duty of care. That finding is contradicted by the judgment in the Vedanta case. Additionally, and as a result of those errors of law, the Court of Appeal failed to properly assess evidence which was capable of evidencing a duty of care, and which far outweighed the evidence before the Supreme Court in the Vedanta case.
The Supreme Court has also granted permission for two written interventions by Corner House Research, and the International Commission of Jurists and CORE Coalition.
Commenting on the appeal, the paramount ruler of the Ogale Community, His Royal Highness King Okpabi, said: “The Ogale Community is praying for success in the Supreme Court. We have always been adamant that the only hope for the people of Ogale to get justice for decades of pollution visited upon us by the acts of Royal Dutch Shell is through the Courts of the United Kingdom.
“We look forward to the Supreme Court hearing and we trust that the Supreme Court will do justice, even if we cannot be there in person to witness the proceedings because of the coronavirus pandemic.”
The solicitor at law firm Leigh Day, Daniel Leader, added: “The ruling in the Vedanta case clarified the law in this area and we hope the Supreme Court will agree that our clients should be able to hold Royal Dutch Shell to account in the English courts for the devastating damage Shell has caused to their communities over many years.”