The High Court has ruled that Shell plc and its former Nigerian subsidiary can be held legally responsible for legacy, or historic, oil pollution which has devastated the environments of two communities in Nigeria. The judgement means that Shell, and its former Nigerian subsidiary, can be held liable for oil spills and leaks going back many years.
Years of chronic oil spills have left the Bille and Ogale communities, which have a combined population of 50,000, without clean water, unable to farm and fish and with serious ongoing risk to public health. Shell tried to prevent these claims from getting to trial with a range of technical, legal arguments that have now been firmly rejected by the Court.
After a four-week High Court preliminary issues trial from 13 February to Friday 7 March 2025, Mrs Justice May ruled on Friday 20 June 2025 that Shell’s attempts to restrict the scope of the upcoming full trial, to be held in 2027, had failed. She made several findings that are important for environmental claims generally.
Claims for legacy pollution
Shell had argued that there was a strict five-year limitation period and that the communities were barred from claiming in relation to any oil spills that took place more than five years ago, even if they had not cleaned up the pollution. The judge rejected this and left it open to the communities to claim for oil spills which occurred more than five years ago, including if Shell has failed to clean them up properly.
The judge found that a failure to clean up could be an ongoing breach of Shell’s legal obligation to clean up and could create a fresh right to make a legal claim for every day that the pollution remained. The judge also considered that an oil spill could be a trespass and, where that was the case, “a new cause of action will arise each day that oil remains on a claimant’s land”.
This is a very significant development in these claims and more broadly for legacy environmental pollution caused by multinational corporations around the world. The legal position following the UK Supreme Court case of Jalla v Shell International Trading and Shipping Vo Ltd [2024] AC 595 appeared to be that corporations could not be held liable for legacy pollution if the claimants failed to file their claim within the relevant limitation period. However, the Judge distinguished this claim from Jalla and made it clear that the claimants are not prevented from bringing claims if a polluter has left contamination on their land, even if a spill happened many years ago.
Illegal bunkering and refining
During the preliminary issues trial Shell sought to blame much of the pollution in the Niger Delta on illegal activities such as oil theft (known as ‘bunkering’) or local artisanal refining of oil. The communities’ lawyers, Leigh Day, argued that Shell had repeatedly failed to take basic steps to stop the bunkering and resulting illegal refining and oil pollution, from taking place.
Shell argued that it could never be liable for pollution arising from bunkering or illegal refining. The judge rejected Shell’s arguments and found that Shell could be liable for damage from bunkering or illegal refining if it failed to protect its infrastructure, and particularly if there is evidence that its own staff have been complicit in the illegal activities.
The two communities allege that there is clear evidence that Shell’s employees and contractors are themselves complicit in illegal bunkering which causes devastating pollution in the Niger Delta and this will be a central issue in the trial which is due to take place in 2027. The communities are currently preparing to cite substantial evidence to support their allegations of complicity.
Liability of Shell plc
Shell argued at the preliminary issues trial that the Nigerian legal framework prevented claims against its parent company, Shell plc, for oil spills from pipelines. The judge rejected this argument and concluded that Shell plc can still be liable for these spills.
This means that the claims against Shell plc will proceed to trial and there will be scrutiny of Shell plc’s involvement in its Nigerian operation over many years, which resulted in chronic pollution to the Bille and Ogale communities. The decision, together with the Supreme Court’s decision in Okpabi v Shell plc, also opens the door for Nigerian communities to pursue claims against Shell plc in the Nigerian courts, should they choose to do so.
Nigerian Constitution
The communities also argued that Shell’s pollution breached their constitutional rights under the Nigerian constitution and African Charter on Human and Peoples’ Rights. The Judge found that oil pollution can engage the right to life under the Nigerian Constitution, finding that “knowledge about the impact of environmental harm has moved on such that there is now a greater readiness to see polluting activities as capable of engaging the right to life” (para 326).
The Judge noted that the “direction of travel” of the Nigerian Supreme Court was to recognise the relevance of fundamental human rights in cases of pollution. However, she did not allow the constitutional claims to proceed against Shell since as an English judge she felt that such a legal development about the interpretation of the Nigerian Constitution should be left to the Nigerian courts.
The onus is now therefore on the Nigerian courts to clarify this point about whether an oil company such as Shell can be liable for breaches of fundamental constitutional rights arising from serious pollution.
Next steps
The trial is a significant moment in the legal claim by the Bille and Ogale communities, who have been fighting UK-based Shell plc and oil company Renaissance, formerly Shell Petroleum Development Company of Nigeria Ltd, for a clean-up and compensation since 2015. Neither community has had a proper clean up despite the ongoing serious risk to public health documented by the United National Environment Programme in 2011.
The Bille and Ogale communities were represented in the trial by Leigh Day international team partners Daniel Leader and Matthew Renshaw who instructed Fountain Court’s Anneliese Day KC, Matrix’s Phillippa Kaufmann KC, Anirudh Mathur and Catherine Arnold, 2 Temple Gardens’ Alistair McKenzie and Blackstone Chambers George Molyneaux.
Reacting to the High Court judgement, the leader of the Ogale community, King Bebe Okpabi said:
“It has been 10 years now since we started this case, we hope that now Shell will stop these shenanigans and sit down with us to sort this out. People in Ogale are dying; Shell need to bring a remedy. We thank the judicial system of the UK for this judgment.”
Leigh Day international department partner, Matthew Renshaw said:
“Shell’s attempts to knock out or restrict these claims through a preliminary trial of Nigerian law issues have been comprehensively rebuffed. This outcome opens the door to Shell being held responsible for their legacy pollution as well as their negligence in failing to take reasonable steps to prevent pollution from oil theft or local refining. This sets an important new legal precedent in environmental claims against multinational corporations.
The trial against Shell and its former Nigerian subsidiary, including in relation to the complicity of their staff in illegal activities that caused pollution, will now take place in early 2027. Our clients reiterate, as they have repeatedly for 10 years, that they simply want Shell to clean up their pollution and compensate them for their loss of livelihood. It is high time that Shell stop their legal filibuster and do the right thing.”
PT
