A FUNDAMENTAL CHANGE OF APPROACH NEEDED ON APPLICATIONS IN RELATION TO JURISDICTION: TOO MANY DOCUMENTS, TOO MUCH TIME

In his judgment in His Royal Highnss Emere Godwin Bebe Okpabi -v- Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC) Mr Justice Fraser observed that applications in relation to jurisdiction needed a different approach from practitioners.

“This case is an ideal example of one with “masses of documents, long witness statements, detailed analysis of the issues, and long argument” being deployed on both sides. The costs burden upon the parties must be enormous, and this approach is, in my judgment, diametrically opposed to that required under the overriding objective in CPR Part 1. It would be regrettable if the only way that compliance could be ensured were to be by the court imposing a strict limit on the number of witness statements that could be lodged, and also restricting their length. Experienced legal advisers ought not to need such strictures in order to concentrate their minds. However, a fundamental change of approach is required by the parties in cases such as these for applications of this nature.”

THE CASE

Actions are being brought by a large number of claimants in relation to pollution in Nigeria allegedly caused by the defendants’ pipelines. There were about 42,500 individual claimants, all of whom are resident in Nigeria. The applications related to jurisdiction. The judge’s comments related to the documents filed and time spent.

THE JUDGMENT

1. “RDS and SPDC were represented by the same law firm and the same counsel before me, as were all the claimants in both the Ogale claims and Bille claims. Hearings contesting jurisdiction are not supposed to require full expositions of the factual and legal issues. In VTB Capital Plc v Nutritek International Corp [2013] 2 AC 337 Lord Neuberger said:

“…hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost.”

Most recently in the Technology and Construction Court, in Lungowe and others v (1) Vedanta Resources plc (2) Konkola Copper Mines plc [2016] EWHC 292 (TCC) (“the Vedanta litigation”) Coulson J referred, in the context of the jurisdictional challenges in that case, to the fact that “the central issue raised by these twin applications, namely where these claims should be tried, assumed all the trappings of a State trial”. The two instant sets of proceedings continued what must be described as an alarming trend. These applications involved a bundle for the hearing of 33 lever arch files, with 37 witness statements from 29 different individual witnesses, together with reports from a number of experts dealing with Nigerian law issues. The authorities bundle numbered 123 different cases, articles and pieces of legislation, including cases from this jurisdiction, European cases, Nigerian, Australian and American decisions. The total number of 29 different individual factual witnesses includes that of Professor Siegel for the claimants to which I will return in further detail below. The skeleton arguments lodged by both parties were extensive; almost 100 pages for the defendants, and 137 pages for the claimants.”

1. Three days were available for oral argument (reduced from the original four due to the need for a reading day). Both parties expressly agreed that these three hearing days were sufficient, and so they did not need to accept the invitation of a fourth day on a future date that was potentially available. This meant that some of the defendants’ reply submissions were made in writing after the hearing. However, these attached yet further factual material as appendices, to which objection was then taken by the claimants. I am of the view that the time available for the oral hearing was sufficient to deal with the four applications fairly. I am however firmly of the view that the views of Lord Neuberger must be observed. The current approach of parties in litigation such as this is wholly self-defeating, and contrary to cost-efficient conduct of litigation. This case is an ideal example of one with “masses of documents, long witness statements, detailed analysis of the issues, and long argument” being deployed on both sides. The costs burden upon the parties must be enormous, and this approach is, in my judgment, diametrically opposed to that required under the overriding objective in CPR Part 1. It would be regrettable if the only way that compliance could be ensured were to be by the court imposing a strict limit on the number of witness statements that could be lodged, and also restricting their length. Experienced legal advisers ought not to need such strictures in order to concentrate their minds. However, a fundamental change of approach is required by the parties in cases such as these for applications of this nature.