Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in business and human rights /environmental claims litigation, particularly as it pertains to legacy pollution. I reported on earlier developments in the case here, with further links in that post to yet other earlier judgments.
The Alame claim is also known as the Bille and Ogale group claim litigation. It is not to be confused with the ‘Bodo’ claim, in which hearings were concluded at the London courts earlier in June.
Of note is first of all that the judge’s findings are all on preliminary issues (‘PI’) of law. They are not on matters of fact. For instance, and with great importance viz the issue of ‘legacy’ pollution, the judge’s finding [77] that
The experts agree that where trespass is relied on, and as trespass does not require damage to be proved, a new cause of action will arise each day that oil remains on a claimant’s land.
and [180] that
Common law claims for damage caused by oil spills from non-pipeline assets may be brought in negligence, nuisance, Rylands v Fletcher and trespass, in each case depending upon the particular facts.
do not imply that the judge has held that Shell or any of the other defendants have trespassed by not cleaning up the relevant legacy pollution. It simply means that she has found there is such possibility, depending on the facts. Of course the finding is still hugely relevant, seeing also the energy (pun unintended) Shell had invested in fighting such a finding. One of the interesting questions imo for future reference, is how trespass as a promising private law claim to address legacy pollution, functions in the event of divestment by the polluter (such as here: the sale of Shell Nigeria to Renaissance).
The judgment is lengthy but very well structured and Leigh Day, solicitors for claimants, have good summary of the main issues here.
In this post, noblesse oblige, I focus on one specific private international law issue, namely question
PI 5 (1) Insofar as a party alleges in the context of a claim under section 11 of the OPA that an oil spill was caused by Third Party Interference: What is the applicable law governing the burden and standard of proof?
This is a Rome II question. [141]
The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:
(a) Insofar as the event giving rise to damage occurred on or after 11 January 2009, the choice of law is governed by the Rome II Regulation (“the Regulation”). The parties agree that under Article 22 of the Regulation burden of proof is governed by the law of the claim, here Nigerian law. There is a dispute between them as to what law governs the standard of proof.
(b) Insofar as the event giving rise to damage occurred before 11 January 2009, choice of law is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Both sides agree that, under English choice of law principles, rules of evidence are a matter for the law of the forum, covering both burden and standard of proof: Dicey, Morris and Collins on the Conflict of Laws, 16th Edn. Para 4-034.
[143] explains the relevance:
If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.
[144] Therefore the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.
My most recent comment on the issue features in my review of Quilombola v Norsk Hydro at the Dutch courts – yet see also other posts using the tag ‘evidence and procedure’.
The one case on the issue discussed in current judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I review here. Counsel for claimant suggested
that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach – referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 – and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by [third party interference].
As I flagged in my post on Marshall, I am not convinced by standard of proof following the evidence and procedure carve-out. The precise delineation of burden of proof under Rome II could do with more authority.
I imagine permission to appeal may be sought on a number of issues. Trial on the substance is scheduled for 2027.
Geert.
EU Private International Law, 4th ed, 2024, 4.82 ff.