02 October, 2020
A recent High Court decision in Jalla v Shell International Trading and Shipping Co Ltd  EWHC 2211 (TCC) considers what it means to have the same interest in the context of claims brought by representatives on behalf of a larger group.
In December 2011, a large oil spill occurred off the coast of Nigeria.
Mr Jalla and Mr Chujor and unspecified others issued proceedings in the High Court in London in December 2017 claiming that they had suffered damage to property and their livelihoods as a result of the oil spill. The claims were framed in negligence and nuisance against several defendants, all of whom were companies affiliated with Royal Dutch Shell Plc and Shell International Trading and Shipping Co Ltd.
The claims were defended and there were a number of procedural applications. The Claimants also issued further protective proceedings. The cases came before the Court in May 2020 to address the representative nature of the proceedings.
The Court was asked to decide firstly, if the lead Claimants and those they purported to represent had the same interest in the claim that was being made and secondly, could the represented class be ascertained with sufficient certainty?
The Court considered the Civil Procedure Rule which sets out the criteria for a representative action which provides:
The Court considered what is meant by "same interest" and reviewed the prior authorities. The Court said the Claimants needed to show that they had a common interest, based upon a common grievance, in obtaining relief beneficial to all represented parties. The causes of action needed to be the same for all practical purposes. Representative proceedings would still be appropriate if individuals had additional claims which were only subsidiary matters but if these additional claims affected the overall character of the litigation they should be dealt with as individual claims raising common issues of law or fact. Further, The Court had to consider the defences to the claims and if there were individual defences to some claims then representative proceedings would not be appropriate.
The Court found that there were common issues of fact to be decided - how and why the oil spill occurred and whether the Defendants were in breach of a duty of care to the Claimants. However, each Claimant would need to go further and prove that the oil spill caused them damage and that they were entitled to the relief claimed. The issues of loss, damage and causation were not subsidiary issues and would be different for different individuals and that may give rise to individual defences.
As a result, the Court struck out the representative elements of the proceedings, leaving the individual claims of Mr Jalla and Mr Chujor to continue.
The Court was satisfied that the represented class had been sufficiently identified by attaching a list of the affected individuals and communities in schedules to the Particulars of Claim.
What does this mean for litigators?
The decision in this case shows litigators the importance of properly establishing the interests of all parties before launching representative proceedings. The existence of common issues of law and fact is not enough to show that parties have the same interest. There would need to be a proper consideration of each individual claim and defence.
However, the benefits of representative proceedings make such careful initial analysis worthwhile. There are significant benefits in sharing information and costs. Some Claimants included in the represented class would be unable to afford to pursue the claim without representative proceedings. Further, representative proceedings prevent clogging up the Court lists with numerous, individual cases deciding similar issues.
For more information contact Claire Edbury in our Dispute Resolution department via email or phone on 0333 207 1143. Alternatively send any question through to Forbes Solicitors via our online Contact Form.