Out-Law News | 26 May 2022 | 11:11 am | 2 min. read
Andrew Barns-Graham, civil litigation expert at Pinsent Masons, said Mrs Justice O’Farrell’s decision to make case management orders regarding proceedings seeking injunctive relief and damages against Royal Dutch Shell proved that there is “no exception” for group actions, even when pleading a matter “is especially difficult and expensive”.
His comments came as Mrs Justice O'Farrell ruled (20 pages / 156KB PDF) that several thousand claimants taking action for environmental pollution allegedly caused by oil spills in Nigeria must provide details of the particular spill said to have affected them and where the alleged damage was suffered.
The parties had agreed in principle that the individual claims should be managed under a group litigation order (GLO). The claimants had described the damage allegedly caused by a series of oil spillages but had not identified any causal links between each oil spill and the damage they had each suffered as a result.
Mrs Justice O'Farrell rejected the argument that it would be impossible or disproportionate to provide such information regarding each of the several thousand individual claimants. She said that the potential pool of test cases which lead claimants are selected from could only be identified as “representative” of the wider group when evaluated in the context of the factual circumstances of all claimants.
Mrs Justice O'Farrell said that the claimants’ intention to apply for a GLO did not release them from their obligation to provide details of facts relied on by individual claimants to establish a cause of action. She ordered them to provide details of each spill said to have affected them and where the damage was said to have been suffered. The judge said the task would be “expensive and time-consuming”, but “necessary”, adding that questionnaires and the use of local resources could make the process more efficient.
Barns-Graham said: “It is easy to see why the claimants in this case sought to defer the requirement to plead individualised claims on causation and loss until after the selection of the lead claimants and the completion of the disclosure and expert evidence phases. It boils down to the volume and complexity of the work involved and therefore its expense - no doubt exacerbated here by the number and location of the claimants.”
This decision does, however, serve as a reminder that claimants in English court litigation must always plead the essential facts necessary for the purpose of formulating the causes of action that they are pursuing, including details of how the alleged wrong has caused them damage. There is no exception which applies to group actions like this, even where pleading a particular matter is especially difficult and expensive,” Barns-Graham said.
He added: “Indeed, giving proper details of claims is particularly important in the context of a proposed GLO because it is central to the GLO framework that the parties and court must set out at an early stage the common or related issues of fact or law between the claims, and that a pool of claimants be identified from which appropriate lead claimants can be selected, the trial of whose claims will lead to findings on common issues which will apply across the group.”
“Claimants and defendants alike should therefore bear in mind, when budgeting and strategising for group actions, the very significant amount of upfront work involved,” said Barns-Graham.
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