COURT OF APPEAL UPHOLDS DECISION NOT TO EXTEND TIME FOR COMPLIANCE WITH COURT ORDER: 28,000 CLAIMS BITE THE DUST

In the decision today in  Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time)[2021] EWCA Civ 1559 the Court of Appeal upheld a decision not to grant extensions of time to 28,000 claimants.  Here we look at the judgment of Lord Justice Coulson. The judgment of Lord Justice Underhill will be looked at in a separate post.  The significant point here is that the application to extend time was made before time for compliance, albeit very late – the court fee being paid six minutes after a 4.00 pm deadline.  The Court held it was appropriate to look at the Denton principles for some guidance in relation to the exercise of the discretion.

 

“… the court has to consider the application to extend time by reference to the overriding objective, with its concepts of dealing with a case justly and at proportionate cost, expeditiously and fairly, taking into account the court’s resources and enforcing compliance with orders. All of these issues can be considered, directly or indirectly, through the prism of Denton v White.”

THE CASE

The claimants were bringing actions relating to an oil spill off Nigeria in 2011.  There are some 27,830 individual claimants and 479 community claimants.  Directions had been given and further extension of time granted to the claimants and by agreement. The matter is listed for trial in February 2022. The claimants made an application for further extensions to update the schedules.  The judge refused the extension of time. Consequently one nine of the claims survived.  The first instance judgment is discussed on this blog here. 

 

THE CLAIMANT’S UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

Lord Justice Coulson considered the applicable legal principles.
6. The Applicable Legal Principles
    1. The starting point is that this was a case management decision, reached after a full day’s argument. In Mannion v Ginty [2012] EWCA Civ 1667 at [18], Lewison LJ said that it was “vital for the Court of Appeal to uphold robust, fair case management decisions made by first instance judges”. That point was reiterated in Abdulle v Commissioner of Police of the Metropolis [2015] EWCA Civ 1260[2016] 1 WLR 898, where it was made plain that this principle applied, even if the case management decision in question had a very significant impact upon the proceedings.
    1. In such a case, this court can only interfere with the decision of the lower court if the judge had regard to a factor that was irrelevant or failed to have regard to a factor that was relevant, or if the judge’s discretion was “clearly wholly wrongly exercised”: see Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and Royal and Sun Alliance Insurance PLC v T&N Ltd [2002] EWCA Civ 1964, at [38] and [47]. That is, on any view, a high hurdle for the claimants to overcome in this case. This was a decision of the judge in charge of the TCC, with considerable experience of case-managing challenging claims through to a conclusion.
    1. The court will grant a reasonable extension if it does not impact on hearing dates or otherwise disrupt proceedings: see Vneshprombank LLC v Georgy Bedzhamov [2019] EWHC 1430 (Ch), citing Hallam Estates v Baker (2014) 4 Costs LR at 26. The fact that a refusal to extend time would in practice mean the end of the claim is a factor to be weighed in the balance, but it cannot of itself warrant the grant of relief: see Chartwell Estate Agents Ltd v Fergies Properties SA [2014] 3 Costs LR 588 (CA). The need to comply with court orders was there said to be “of paramount importance”. That approach ties in with the long-standing principle that a claimant’s entitlement to sue a defendant is not an absolute right, and does not permit that claimant to fail to comply with court orders, or delay and disrupt the administration of justice: see Leizert and Anr v Kent Structural Engineering Ltd [2002] EWHC 942 (QB).
    1. When considering applications of this sort the court is obliged to take careful account of the over-riding objective at CPR 1.1. That provides:

“(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.”

As part of its consideration of the over-riding objective, the court should consider the effect of the application in question on the administration of justice and upon other court users: see Biguzzi v Rank Leisure PLC [1991] 1 WLR 1926 and Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.
    1. In the present case, the judge gave some thought to whether the principles applicable to relief from sanctions under r.3.9 (as per Denton v TH White Ltd [2014] EWCA Civ 906) were relevant, but concluded that, because the application for an extension of time was (just) made in time, she did not need to consider those principles further: see [27].
    1. I agree with Mr Dunning that the regime under r.3.9 as to relief from sanctions is not directly applicable here (because there was no sanction, there being no failure to comply with an unless order). I also accept that in many cases where an extension of time is sought to comply with an existing order of the court, the relief from sanctions regime will not be relevant.
  1. But I consider that the approach in Denton v White is of some relevance when considering the particular circumstances of this case. This was a situation where, just as if they were facing an unless order with which they had not complied, the claimants needed the court to get them out of a major difficulty; where they were throwing themselves on the mercy of the court in order to prevent the vast majority of their claims from coming to a shuddering halt. No extension of time meant no continuing claim for the vast majority of these claimants, just as if the order of 2 June 2021 had indeed been an unless order. Accordingly, it seems to me that the general principles identified in Denton v White are applicable, at least by analogy, when considering the application of the over-riding objective to this case. An examination of whether the claimants’ failure to meet the earlier orders of the court was serious and significant; whether there was a proper explanation for those delays; and a consideration of all the circumstances of the case, is a useful and illuminating way of arriving at an answer to the question as to whether or not it was in accordance with the overriding objective to grant the claimants a further extension of time.
THE DRACONIAN EFFECT OF NOT EXTENDING TIME
7. Ground 1: The Draconian Effect of Not Extending Time
    1. The claimants’ first and most significant ground of appeal is that the judge failed to take into account the fact that, if she did not extend time, the vast bulk of the claimants would not be able to pursue their claims. They point out that nowhere in her consideration of the relevant issues at [37]-[45] does the judge refer to the prejudice to the claimants if time was not extended. In addition, Mr Dunning suggested that at least some of the language in those paragraphs suggests that the judge did not appreciate those draconian consequences. For example, he noted that, at [42], the judge referred to the application as an attempt by the claimants to gain “further time to perfect their case”, when in reality it was much more important than that. The claimants therefore do not shrink from saying that, in consequence, she reached a conclusion that no reasonable judge could have reached.
    1. I acknowledge at once that, in the crucial balancing section of the judgment at [37]-[45], the judge did not identify the draconian effect of not extending time. It would plainly have been much better if she had done so. But I remind myself that this was an ex tempore judgment at the end of a long day in which the claimants had been arguing, front and centre that, if time was not extended again, the vast bulk of their claims would be stopped in their tracks. In those circumstances, I consider that it is inconceivable that the judge was unaware of the consequences of refusal.
    1. Moreover, she expressly referred to that central element of the claimants’ submissions at [19]. Mr Dunning criticised that passage, set out at paragraph 22 above, on the basis that the judge appeared to have in mind only the 900 claimants for which he had indicated that a date could be provided in the reformatted schedules, and thereby forgot or ignored all the other claimants in the case. I consider that criticism to be unfair. I have set out in paragraph 21 above the submission that Mr Dunning made about the 900 dates. In my view, the judge’s observation at [19] related directly to the submission that had been made to her by Mr Dunning.
    1. I consider that the judge took the draconian effect of not extending time as a given. It was the fundamental consequence against which everything else had to be measured. She expressly examined all the other relevant factors to see whether, in all the circumstances, the draconian consequences of not extending time were proportionate and justified. That was the principal purpose of her analysis at [37]-[46]. She concluded that, for the reasons she set out, the further extension was not warranted and the draconian consequences therefore followed. In my view, therefore, although she did not spell out that point in that way, that was the process which she undertook.
    1. I consider that the judge took into account everything relevant. It is not suggested that she had regard to anything irrelevant. In addition, it cannot be said that she was plainly wrong in her conclusion: she gave clear reasons why, given the length of time the case had already taken, the latitude that the claimants had already been given, the consequences of a further extension (including the potential effect on the trial fixed for February 2022), an extension was not warranted. I consider that most judges would have reached the same conclusion.
  1. However, in order to deal with the claimants’ appeal fully and fairly, I am prepared to assume that, contrary to those views, the judge did err in the way that Mr Dunning suggested under ground 1. If so, it is then necessary for this court to re-exercise the discretion. In undertaking that task, I have had particular regard to one matter which the judge did not expressly address[4], namely why what the claimants propose to do in the extended period is contrary to all the previous directions, would not advance their case, and should not therefore be permitted. In addition, I have found it helpful, as advertised above, to undertake that re-exercise of discretion with a careful eye on the three step approach enunciated in Denton v White. When the exercise of discretion is approached in this way, I consider that the judge’s conclusion is the only one available.

 

IF THE COURT OF APPEAL WERE EXERCISING ITS DISCRETION AFRESH

The judgment goes on to state that if the Court of Appeal were exercising its discretion afresh then the same decision would be reached.
    1. Furthermore, I consider that what the claimants now wish to do amounts to a complete negation of what the court has previously ordered them to do. As explained in Section 2 above, the entire structure of Stuart-Smith J’s directions, and the way in which they have since been case-managed, assumed that, in order to justify dates which were many months or years after the Bonga oil spill, the claimants would need to serve supporting factual evidence. Stuart-Smith J deliberately eschewed the idea that the claimants could simply plead a variety of dates in a schedule: that was why it was expressly part of his directions that they serve evidence that supported the (later) dates which they wished to assert. What the claimants now want to do is to overturn 16 months of case-management directions, and be permitted to do something much less onerous and of little or no utility. So, on analysis, this is not an application to extend time yet further; it is instead an application which seeks to remove the specific burdens which Stuart-Smith J properly placed on the claimants in March 2020.
    1. In my view, the claimants should not be permitted, at or beyond the eleventh hour, to rewrite the directions in this way. It should be remembered that Stuart-Smith was critical of the claimants’ “iterative approach” (see paragraph 10 above). He regarded the DODPs and their supporting material as representing to the claimants something of the last chance saloon. In my view, the claimants have failed to appreciate or accept the opportunity he gave them.
  1. So if I had to re-exercise the court’s discretion, I would regard these factors alone as out-weighing the draconian consequences of refusal, and thus justifying the order that the judge made.
THE OVERRIDING OBJECTIVE AND DENTON -V- WHITE
It was held that the Denton principles had some relevance in this context.
    1. Further and in any event, the court has to consider the application to extend time by reference to the overriding objective, with its concepts of dealing with a case justly and at proportionate cost, expeditiously and fairly, taking into account the court’s resources and enforcing compliance with orders. All of these issues can be considered, directly or indirectly, through the prism of Denton v White.
    1. The first question is whether the failure of the vast bulk of the claimants to serve the DODPs, together with the pack of supporting material, on 2 July 2021, was serious and significant. I am in no doubt that it was. As the judge explained, there had already been three timetables set to accommodate the claimants’ delays. They had had from March 2020 to provide this material and, by July 2021, they had only produced a pleading in support of 9 out of 28,000 plus claimants. Most TCC cases are resolved, from start to finish, in 16 months, and although it can with justification be said that this was not a standard TCC case, to take so long over one element of one sub-trial speaks for itself.
    1. Furthermore, the delays were serious and significant because any delay in the service of material beyond 2 July 2021 would inevitably have led to the adjournment of the trial of the limitation issues. It is implausible to suggest otherwise. Even if the claimants had complied with the revised order and provided the DODPs, and everything else, by 2 July 2021, the respondents had to reply by the end of November (in a shorter period then they had originally been given by Stuart-Smith J). Allowing for the Christmas/New Year period, that would have made the time for the preparation for the February trial itself extremely tight. It would have imposed a huge burden on everyone to ensure an efficient hearing. By their application, the claimants were seeking an extension of another seven weeks. That would have shunted the date for the defendants’ responses, allowing for the holiday period, to mid/late January 2022. A trial of the issues two or three weeks later would therefore have been impossible.
    1. I put that point to Mr Dunning during the course of the hearing. He accepted the logic of it. His argument was that the defendants did not need the time that they had originally been given to respond to the claimants’ DODPs and the supporting material. That was therefore another example of the claimants’ application seeking to rewrite all that had gone before. Mr Dunning confirmed that his case was that, even if the claimants were allowed an extension to early October to reformat the schedules, the defendants should not be given any time beyond the existing November date to put in their responses. His argument was that the defendants already knew the case that they had to meet and that the provision of the dates of damage by the claimants was, in his phrase, “a sideshow”.
    1. I deal with, and reject, that submission in Section 9 below, when dealing with the claimants’ ground 3. For present purposes, I would simply observe that that submission is contrary to the orders made by Stuart-Smith and O’Farrell JJ (the most recent of which was an order to which the claimants consented) when they allowed the defendants a period of 5 months or so to respond to the DODPs and supporting material. It was inherent in the structure of their orders that the DODPs, and supporting material, were very important, in order that the defendants knew and could respond to the case that they had to meet as to when actionable damage occurred. To suggest now that the defendants did not need this time at all, because the dates were “a sideshow”, flies in the face of the case management structure of the actions since March 2020.
    1. For these reasons, I consider that the accrued and proposed further delays were serious and significant.
    1. The next question is whether there is a proper explanation for the delays. In my view, there is no real explanation for the delays at all.
    1. I start the analysis with the making of the order by Stuart-Smith J in March 2020 for the provision of the DODPs. I remind myself that this pleading had only been necessitated as a result of the emergence at the hearing of the suggestion that many of these claims involved, not property on the coast, but property inland. In other words, the DODPs were themselves only necessitated in the first place by the claimants’ late change of case.
    1. Between March and August 2020, there is nothing in the papers before this court to indicate that anything happened on the claimants’ side to comply with the order of Stuart-Smith J. In August, the claimants changed solicitors, and Rosenblatt came on the record (although they had been involved before as agents for the original solicitors). But again, for the period between August 2020 and about March 2021, it is not apparent from the claimants’ evidence that any steps were taken to comply with the original or the revised orders of the court.
    1. There are two witness statements, both dated July 2021, from Mr Roche and Ms Macleod, which contain the only information about delay. They both identify some of the generic difficulties with obtaining information in this part of Nigeria (although those same difficulties had already formed the basis of the extension from November 2020 to June 2021 which O’Farrell J had granted in November 2020). Mr Roche deals in some detail with a trip into the interior, but it does not appear that any relevant information was obtained from that trip: certainly, it appears to involve a different area to the estuary where the 9 claims (which were supported by the DODP served on 2 July 2021) originated.
    1. In other ways too, these statements were more notable for what they omitted than what they said. Lord Goldsmith pointed out that the existing schedules identify thousands of mobile telephone numbers for individual claimants, yet there was no evidence that these numbers had been called in order to advance the DODPs. On going to it, the passage in Mr Jalla’s statement which Mr Dunning said dealt with this point made no mention of the mobile telephones. Lord Goldsmith also pointed to the earlier evidence of Mr Okerieke, the Secretary of Bonga Oil Spill Communities, who said that his duties included “receiving, transferring, and handling all documents pertaining to this Court case and liaising with the general cohort of claimants…” There was no evidence that his services had been utilised in any way in the preparation of the DODPs and supporting material.
    1. But the critical omission in these two statements involved any sort of chronology; indeed, save in two instances, they do not refer to any dates at all. There is a reference in Mr Roche’s statement to just one date (23 March 2021), which concerned a boat trip that did not happen; and another single reference in Ms Macleod’s statement (to a letter of 18 May 2021, talking about the generic difficulties of security and communication in the region). Taking that evidence in the round, the only inference that I can draw is that the attempt to comply with the revised order of November 2020 only started to happen in the late spring and early summer of 2021, shortly before the time for the service of the DODP was due to expire in early June 2021. It is therefore unsurprising that the claimants had to apply for a further extension of time.
    1. In one sense, it is the position from May 2021 (when the further extension was agreed) to July 2021 which concerns me the most. The claimants had originally sought a further extension of three months but the defendants, not unreasonably, refused to agree. In the end those representing the claimants agreed to the one further month’s extension (to 2 July 2021) offered by the defendants. Their agreement can only have been on one of two possible bases.
    1. The first would have been that the claimants’ representatives truly believed that they could serve the DODPs and supporting evidence in respect of all 28,830 claimants by 2 July 2021. That seems highly implausible given the difficulties to which Mr Roche and Ms Macleod refer in their statements. Indeed, there is no evidence to indicate how such optimism could have been justified, nor is there anything to say, for example, that an event happened in June 2021 that suddenly made that timetable impossible to meet.
    1. Mr Dunning suggested that paragraph 7 of Ms Macleod’s statement did provide support for the decision to agree the one month extension. There she said:

“In seeking the original agreed extension of time it was the Claimants’ belief that significant ground could be covered within that time to make good the aspects of the Order that had proved most challenging.”

In my view, as was debated with Mr Dunning during the hearing, those words were not only studiedly vague, but they also referred only to “the claimants’ belief”. It was the claimants’ solicitors who agreed the order, and therefore it was for the solicitors to say how and why they considered that they could provide the vast amount of missing material in a month. I dare say that was only loose language, but the fact is that neither Ms Macleod nor anybody else has purported to do so.
    1. The other possible basis for the claimants’ representatives’ agreement to the 2 June order is that they thought it most unlikely that they could be ready to serve all the DODPs and the supporting package by 2 July 2021, and so agreed to the consent order on the basis that they would do what they could by 2 July 2021 and then, if necessary, make a further application to the court for a yet further extension of time[5]. That would not have been an appropriate approach. But whichever basis the claimants’ representatives worked on, it provides no explanation at all for the further delays that have occurred since May 2021, when the last extension was agreed.
    1. As to the course that the claimants now wish to take, namely the production of schedules with some dates added, without any supporting evidence at all, there is no evidence before the court as to why this sudden and dramatic volte face has taken place. Is it because the solicitors have abandoned hope of obtaining the evidence which Stuart-Smith and O’Farrell JJ thought was necessary? Is it because further work has shown that many more of the claims are statute-barred than had been thought? Is it because the claimants’ representatives have developed a new and better method of communication with the claimants? Is there some new method of calculating the relevant dates that had not hitherto been used? There are no answers to these questions. The absence of this basic information is even more surprising when it is remembered that, as long ago as March 2020, Stuart-Smith J said that the claimants’ “iterative approach” to this litigation had to cease. As Lord Goldsmith put it during the hearing, there was no explanation “as to why they could advance only 9 claims in July, but can today do thousands.”
    1. For these reasons, therefore, I consider that there is no proper explanation of the delays in this case.
    1. Finally, the third stage of Denton v White requires the court to consider all the circumstances of the case. Two factors that must be considered as part of that analysis, and which are also expressly part of the overriding objective, are the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with court orders. On both of these counts, the history as recounted above means that the claimants come up very short.
    1. This litigation has not been conducted efficiently or at proportionate cost, a complaint made by both Stuart-Smith and O’Farrell JJ, and a point made by this court in the recent judgment about why the 2017 proceedings were not a representative action. These delays simply highlight further the inefficient and costly way in which the claimants have approached the claims. The importance of complying with court orders is self-evident and the claimants’ approach to the consent order of 2 June 2021 (likely to have been based either on unrealistic optimism or cynical opportunism) is another strong factor weighing in the balance against them.
    1. This litigation has been bedevilled by problems, many of which arise from the limitation issues, and others from the way in which it has been set up and run. Those problems are, I am afraid, the claimants’ responsibility. Their unconventional attempts to avoid the defendants’ limitation defences (by way of the assertion of continuing nuisance and the suggestion that the 2017 action was a representative action) have been rejected by every court which has considered them. In some ways, this is a claim that is facing death by a thousand cuts.
    1. Of course, I acknowledge without qualification that, if no further extension of time is permitted, the vast bulk of these claims will fail because the claimants will not have been able to avoid Stuart-Smith J’s underlying finding that the damage happened within weeks of the Bonga oil spill. But in the light of the continuing delays that have occurred in identifying the material that would avoid that outcome, the lack of any proper explanation for those delays, the prejudice to the defendants if a further extension was allowed (dealt with in greater detail under ground 3 below), and the practical pointlessness of allowing dates to be put forward in a schedule without any evidence to support them, mean that, in accordance with the overriding objective, the extension of time should be refused.
    1. For these reasons, if it is necessary to re-exercise the court’s discretion, I would re-exercise that discretion in the way set out above and would conclude that the draconian consequences of the order were justified in the circumstances of the case.
    1. I go on to consider the other grounds of appeal but they are, in my view, of secondary importance and have in many ways already been answered in the analysis set out above.
8. Ground 2: The Granting of a Shorter Extension
    1. The claimants complain that the judge should have granted a shorter extension than the one that they sought, which would have allowed them to provide amended schedules in respect of approximately 900 claimants. In my view, Lord Goldsmith was right to describe this argument as a makeweight. There are three complete answers to it.
    1. The first is that at no time did the claimants formally ask the judge for any lesser extension limited to the 900. On the contrary, Mr Dunning indicated that he could not do so because he did not have the necessary instructions. It is wrong in principle for a party to complain that the judge failed to make an order which they deliberately did not ask her to make.
    1. The second answer is that, for the reasons set out at paragraphs 41-44 above, the reformatted schedules would not have made any meaningful difference because, unsupported by any other evidence, the dates on the proposed schedules could never have been proved.
    1. The third answer is that, for the reasons that I have already explained, any delay in the provision of further information as to the dates of damage would have meant that the trial of limitation issues would have had to have been adjourned. This ‘halfway house’ argument cannot affect that conclusion. So the primary difficulty still remains that any date beyond 2 July 2021 was going to lead to an adjournment to a trial fixed 18 months ago.
  1. For these reasons I do not consider there is anything in ground 2.

THE ARGUMENT THAT THERE WAS NO PREJUDICE TO THE DEFENDANTS

 

    1. The claimants argue that any extension of time would not affect the defendants, because they already know the case they have to meet and have already advanced evidence in support of their propositions that: i) the oil was not Bonga oil; and ii) was the result of a different oil spill altogether. Mr Dunning’s skeleton argument went so far as to say that the dates of damage were essentially irrelevant to the defendants and were no more than a formal element required of the claimants in order to prove their own case.
    1. I reject the claimants’ submissions. They are, as many of their submissions have been over these three appeals, unacceptably one-eyed.
    1. First, as I have already pointed out, the submission ignores the fact that the provision by the claimants of the dates of actionable damage was required in the first place by Stuart-Smith J because, without it, the new/late case that some of this property was inland (and therefore may have suffered damage later) could not get off the ground. He had found that, in general terms, the damage would have occurred within weeks of the December 2011 Bonga oil spill. The claimants needed to get round that difficulty for their claims to proceed. The DODPs and supporting material were not therefore a simple box-ticking requirement; they were the only way in which the claims (or at least some of them) might survive.
    1. Secondly, the dates of damage needed to be properly set out and supported in order that the defendants could then see the case they had to meet. They had already met the case about damage to the coastal properties; prima facie, claims based on that damage were statute-barred. Now they had to meet the new/late case. The judge envisaged that there would be “individualised limitation defences” to address those new dates of damage. It is self-evident that such individualised limitation defences could not be advanced until the defendants knew the individual case on the date of damage that they had to meet.
    1. Thirdly, the provision of the DODPs and supporting package goes to a critical issue between the parties. Mr Dunning made much of the fact that the defendants’ defence is that the Bonga oil never washed up on the shore at all. I accept that that is the defendants’ primary defence. But they have also made it plain that, further and in any event, they deny that the oil about which the complaints are made is Bonga oil. In my judgment, this alternative line of defence ties in precisely with the importance to the defendants of knowing the date of damage alleged.
    1. The connection arises in this way. There is evidence from Ms Atemie, a senior Shell employee with detailed knowledge of the widespread oil pollution in this part of the Niger Delta. She makes it plain that hundreds of thousands of barrels of oil are spilt, lost or stolen every day in this part of Nigeria. Mr Dunning relied on her evidence to demonstrate that the defendants do not need to know the precise dates relied on by the claimants in order to mount this alternative defence. But that is to miss the point. Ms Atemie gives very detailed evidence about particular spills and other relevant events in specific communities in this part of Nigeria, and even attaches dates to them. What the defendants want, and were entitled to expect, is a detailed series of DODPs together with supporting evidence which made clear precisely what dates the claimants were relying on in particular locations. The defendants would then be able to cross-reference the claimants’ dates with Ms Atemie’s evidence about the other spills.
    1. In this way, if the claimants were saying that there had been an oil spill in community X on 1 January 2015, the defendants could check their extensive records (as evidenced by Ms Atemie) and see if that tallied with an oil spill 2 miles upriver from community X on 29 December 2014. In other words, Ms Atemie’s evidence makes clear how and why the defendants required the DODPs and the supporting material in order to know the case they had to meet and to see if they could advance a positive case on causation on the basis of their own knowledge of other spills.
    1. Fourthly, there is the question of an adjournment of the February trial. As noted above, any delay in the provision of the further information beyond 2 July 2021 would lead to the adjournment of the trial. That is the very last thing that the defendants want, as they made clear in the inter-solicitor correspondence in May.
  1. For these reasons, I consider that Mr Dunning was wrong to submit that the extension that he sought would not prejudice the defendants. On the contrary, it plainly would cause prejudice: it would affect the defendants’ substantive right to know the case they have to meet and also their entitlement, after three years of interlocutory warfare, to have a trial of the limitation issues.