THE JUDGMENT IN JALLA -V- SHELL: THE JUDGMENT OF LORD JUSTICE UNDERHILL: THE ABSENCE OF ANY EXPLANATION FOR DELAY

The case of Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time) [2021] EWCA Civ 1559 was covered in the previous post.  It is worthwhile looking at the shorter judgment of Lord Justice Underhill. This emphasises some key aspects of the case, in particular the failure to give a full explanation and the fact that the claimants were not proposing to comply with the order they were seeking an extension of in any event.

“What was required in support of the application for an extension was a particularised explanation of what those systems were and why it had not been possible to use them to obtain the required information from any but five of the over 479 communities. But the evidence relied on by Mr Dunning contains nothing of this kind…”

 

THE JUDGMENT OF LORD JUSTICE UNDERHILL

Underhill LJ was agreeing with the decision of Coulson LJ to dismiss the claimants’ appeal against a decision refusing an extension of time to comply with court orders.

    1. I agree that this appeal should be dismissed. I will give my reasons in my own words, but I do not believe that they essentially differ from Coulson LJ’s, and in the light of his clear and comprehensive judgment I can do so shortly.
    1. I would emphasise the following features of the situation in which the Judge had to make her decision:
(1) The belated emergence of the new limitation case. The Claimants’ new limitation case had not emerged until the hearing before Stuart-Smith J in September 2019, the best part of two years after the 2017 proceedings were launched: see paras. 7-8 of Coulson LJ’s judgment. That was not in itself a reason for not allowing it to be advanced, as Stuart-Smith J accepted, but it fully justifies his warning that the Claimants “should assume that they will only have one opportunity to get their case in order from now on“: see para. 15 of his judgment, quoted by Coulson LJ at para. 10 above.
(2) The importance of the requirement to plead and verify the new limitation case. The order of Stuart-Smith J with which the Claimants sought more time to comply was of fundamental importance to the viability of their claims. Even on the basis that the relevant limitation period was six years, each Claimant (whether an individual or a community) needed to establish that Bonga oil had first caused damage at their respective locations no earlier than 20 April 2014. Unless such a date were alleged in each case, and supported by evidence, the claims could not proceed. We are not therefore concerned with some procedural order of peripheral importance.
(3) The length of the delay. Stuart-Smith J’s original deadline for compliance gave the Claimants seven months to plead and verify the new limitation case. That period had been twice extended, first by over six months (to 4 June 2021) and then again by a further month (to 2 July 2021). At the time of the application for a further extension, on 2 July 2021, the Claimants had thus already had twice the time originally set to plead and verify a case which should in truth have been pleaded from the start.
(4) Absence of explanation. The evidence filed in support of the Claimants’ application offered no real explanation of why they had been unable to comply with that timetable. Mr Dunning supplied us with a three-page “Summary of Evidence Presented to Court on Reasons for not Complying Fully with Date of Damage Directions“. This consisted of a number of points extracted from, and cross-referenced to, the witness statements of Ms Macleod and Mr Roche. (I should say that it contained no reference to the exhibits to those statements, most of which were not in the bundles.) Coulson LJ summarises the content of those statements at paras. 56-58 above. As he says, Ms Macleod’s statement explains in general terms the difficulties of communicating with the communities to which the Claimants belong, which are scattered over a huge area in a part of Nigeria where there are serious problems about transport and security (said to have been made worse by the pandemic) and where telephone and internet access are far from straightforward. I do not doubt those difficulties, but they have been present from the start of the litigation, and have already been taken into account in setting both the original and the extended deadline. The Claimants’ solicitors and Steering Committee must (and certainly should) have put in place at least some basic systems for obtaining information from the communities which they represented; and indeed, as appears from para. 57 of Coulson LJ’s judgment, there is other evidence that that was the case. What was required in support of the application for an extension was a particularised explanation of what those systems were and why it had not been possible to use them to obtain the required information from any but five of the over 479 communities. But the evidence relied on by Mr Dunning contains nothing of this kind, and when we put this difficulty to him at the hearing he was unable to refer us to anything further. There is also a real puzzle about the relevance of Mr Roche’s statement for our purposes. His evidence is unspecific about what his expedition was intended to achieve, but it can never have been the intention that he would visit all 450 communities: in the event he only visited eight, none of which was among the five from which date of damage evidence has been obtained. Neither witness explains why it was not possible to obtain the required information by phone or email. Granted the problems (in particular about internet communication), the Claimants’ solicitors and Steering Committee had nevertheless had over a year to find ways of overcoming them, and the material required, though important, was narrow in scope, consisting essentially of a date and a single witness to verify it. As Coulson LJ notes at para. 60, the evidence also contained no particularised explanation of how the Claimants’ solicitors, having failed to obtain the necessary information thus far, expected to be able to do so if granted the extension sought.
(5) The admission that the Claimants would not in fact be able to comply with the order even if the extension were granted. At the hearing before the Judge Mr Dunning made it quite clear that even in relation to the 900 communities in respect of which the Claimants expected shortly to be able to plead a date of damage there was no intention to provide any evidence verifying that date: see para. 20 of Coulson LJ’s judgment. That was a remarkable admission. The requirement for verification was as much a part of Stuart-Smith J’s order as the requirement to plead a date of damage. It is hard to see how the Judge could have been justified in granting an extension in circumstances where it was acknowledged that even in the extended period the original order could not be complied with. I agree with Coulson LJ (see para. 40 above) that in truth Mr Dunning was seeking a variation of Stuart-Smith J’s order in this regard, though he did not do so explicitly; but it would have been extraordinary for the Judge to accede to such an application when the requirement for verification had, for good reason, been an essential condition of Stuart-Smith J’s decision to allow the Claimants one more chance to get their house in order on limitation.
    1. If the decision falls to be taken by this Court I would regard those reasons as sufficient to require us to refuse the extension sought. It was also an important feature in the Judge’s reasoning that the grant of an extension would require the adjournment of the hearing fixed for February 2022: Mr Dunning did not accept that that was so, but I agree with what Coulson LJ says about that (see paras. 76-84). That is certainly a material factor, but I would not myself put it at the centre of the argument in the circumstances of this case. Although the Court is rightly slow to make “disciplinary” orders on case management grounds which will prevent parties from having their substantive disputes determined, there are circumstances where such orders are justified; and I agree with Coulson LJ that they are not necessarily confined to cases where an order is or has been made explicitly by way of a “sanction”. The factors which I have enumerated in the previous paragraph, and particularly the last two, mean that this is a case where it would be right to refuse an extension even if the specific prejudice caused by the history of unexplained non-compliance with the Court’s orders was slight.
    1. That being so, the criticisms made by Mr Dunning of the Judge’s reasoning are not decisive of the outcome of this appeal. With the benefit of hindsight, it would probably have been better for her not to have given an ex tempore judgment where her decision had such a fundamental impact on the future of the litigation as in this case. I agree with Coulson LJ that she should in her judgment have explicitly acknowledged that impact. But I also agree with him that it is hard to believe that she failed to appreciate it or to take it properly into account. Although Mr Dunning criticised her focus on the further 900-odd individual claims (comprising six communities) in which he said that he would be in a position to comply (in part) with the order, it seems to me that that was because those were the only cases in which the possibility of compliance was being asserted. I would also, as appears above, have attached more importance than she explicitly did to the absence of any proper explanation for the delay. If, which I need not decide, the way that she expressed her reasons was insufficient to justify her conclusion, I am nevertheless satisfied that that conclusion was correct.
  1. It makes no difference to my decision that Mr Dunning told us that the Claimants were now in a position to supply dates of damage for 165 communities and over 22,000 individual Claimants: see para. 40 above. That was not the evidence before the Judge; but even if it were permissible for us to take into account changes since the date of her decision (which I am not sure that it is in the circumstances of this case), what he told us was unsupported by any evidence, and he confirmed that the material to be supplied would only be a pleaded date of damage and would not be accompanied by verifying witness statements.