UK Supreme Court clarifies law on ‘continuing nuisance’

Jacqueline Harris and Michael Fenn of Pinsent Masons were commenting after the Supreme Court rejected (20-page / 270KB PDF) arguments raised by two Nigerian citizens, Mr Jalla and Mr Chujor, who alleged that an oil spillage off the coast of Nigeria is having such ongoing impact on land they own that it constitutes a ‘continuing nuisance’ in law.

The actionable breach of civil law the men claimed was private nuisance. Private nuisance involves an act or omission which significantly interferes with another person's exercise or enjoyment of their land, or that person's rights over land. 

In England and Wales, a nuisance claim must be brought by claimants within a six year 'limitation period' that begins at the time of the cause of action – the event that triggers a right to claim. If it is not, the right to bring a claim for the nuisance is lost.

In this case, Jalla and Chujor initially lodged their claims just under six years following the spillage in 2011. However, the men sought to substantively amend those claims after the six-year anniversary of the spillage had passed – including changing one of the defendants. In the course of the assessment of whether the amended claims had been brought in time, the question of whether the alleged impact on the men’s land constituted a ‘continuing nuisance’ arose.

A continuing nuisance is a legal concept that may apply where an activity giving rise to a cause of action repeats on a regular basis. In such cases, a new limitation period begins for each event giving rise to the cause of action. Jalla and Chujor argued that on the assumption that the oil from the oil spill is still present on their land and has not been removed or cleaned up, there is a continuing cause of action accruing afresh each day. By seeking to argue ‘continuing nuisance’ in this manner, Jalla and Chujor were essentially seeking to overcome arguments about their amended claims being brought out of time.

The Supreme Court clarified what the concept of ‘continuing nuisance’ is in its ruling.

It said: “In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and … overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.”

The court also clarified that, for continuing nuisance to be said to be occurring, it is not necessary to show that the business or person responsible for the event giving rise to the cause of action has some control over, and ability to prevent, the continuation of the nuisance.

It reached those findings in concluding that there was no continuing nuisance in respect of Jalla and Chujor’s land.

“There was no continuing nuisance in this case (and there would be no continuing nuisance in the example of the one-off flood) because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land,” the Supreme Court said.

“The leak was a one-off event or an isolated escape. The oil pipe was no longer leaking after six hours and it is being assumed for the purposes of this appeal that the oil reached the Nigerian Atlantic shoreline (and hence the claimants’ land) within weeks rather than months of 20 December 2011 [when the oil spill happened],” it said.

The Supreme Court further considered that to accept Jalla and Chujor’s argument “would be to undermine the law on limitation of actions”, which it highlighted is based on polices designed to protect defendants as well as the interests of the state and claimants, “because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up”.

However, the Supreme Court left open questions of whether continuing nuisance can be said to arise, in the context of private nuisance claims, where the nuisance emanates from the sea or in the context of just a single one-off event, such as the oil spill in this case.

Jacqueline Harris said: “Allegations of nuisance might be a channel for an increase in environmental impact challenges in coming years so this has been an anticipated judgment. A finding that the continuing effects of an original act of nuisance amounted to a continuing nuisance for the purpose of assessing limitation would have had significant implications in potentially extending the availability of a claim in nuisance long after the original nuisance ceased. The case nonetheless provides some useful clarity around what constitutes continuing nuisance, whilst leaving the door open on the issue of whether a private nuisance can emanate from the sea and be caused by a single one-off event, such as the oil spill in this case.”

Michael Fenn said: “The case highlights the reluctance of the courts to make any decisions which may undermine the law of limitation and to instead favour promoting certainty for all parties and the state. It serves as a helpful reminder for claimants of the need to have limitation at the forefront of your mind when dealing with a potential claim for complex and continuing losses, and to instruct early legal advice.”