Part 4 of the Building Law Reports covers the following key judgments:
- Okpabi & Ors v Royal Dutch Shell Plc & Anor [2021] UKSC 3
- Clin v Walter Lilly & Co. Ltd [2021] EWCA Civ 136
- Harrison Jalla & Ors v Shell International Trading And Shipping Company & Anor [2021] EWCA Civ 63
- Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC)
- Martlet Homes Ltd v Mulalley & Co. Ltd [2021] EWHC 296 (TCC)
Introduction to the Building Law Reports Part 4 [2021]
In this issue we report one decision of the Supreme Court, two of the Court of Appeal and two first-instance decisions of the TCC, one from Manchester and one from London. Two of the cases concern pollution in Nigeria and claims in the jurisdiction by very large numbers of claimants and appellants, and both concern anchor defendants.
In Okpabi and Others v Royal Dutch Shell plc and Another the Supreme Court considered a case of some age, namely a refusal by Fraser J in early 2017 to allow a large class-action type claim by communities in Nigeria that sought to proceed against Shell companies for matters connected with oil pollution arising in Nigeria. This used the device of a so-called “anchor defendant”, namely the UK registered Shell holding company, to proceed against both that company (on the basis of a duty of care) and a Nigerian subsidiary. This was upheld by the Court of Appeal (Vos C and Simon LJ, Sales LJ dissenting) in 2018. The Supreme Court allowed an out of time appeal and overturned the Court of Appeal, which means the proceedings can continue.
The first of the two cases from the Court of Appeal is Clin v Walter Lilly & Co Ltd, a case concerning planning issues and construction works as demolition. Carr LJ gave the judgment with which the other two members agreed (Lewison and Asplin LJJ being the other two), dismissing an appeal against a decision of Waksman J against the party that had the contractual responsibility for applying for conservation area consent for the works, which he decided amounted to demolition. The matter was important because of the contractual provisions for extensions of time and relevant events.
The second is Harrison Jalla and Others v Shell International Trading and Shipping Company and Another [2021] EWCA Civ 63, which, like Okpabi, also concerned pollution in Nigeria. In his extremely comprehensive judgment, Stuart-Smith J (shortly before he was appointed to the Court of Appeal) found that the anchor defendant, the Shell International Trading and Shipping Co Ltd, had a limitation defence because the oil spill that caused the pollution (which occurred on 20 December 2011) was not a continuing nuisance. The Court of Appeal (Lewison, Newey and Coulson LJJ) dismissed the appeal, Coulson LJ giving a careful explanation of why the judge had been correct to characterise the event as a one-off rather than continuing nuisance.
The TCC in Manchester (HHJ Hodge QC) in Motacus Constructions Ltd v Paolo Castelli SpA had to address a new point on adjudication enforcement. This was whether or not statutory adjudication and its enforcement through the courts applied to a contract for construction operations in London between an Italian company and a British one, where the parties had agreed that the French courts had exclusive jurisdiction. This brought into play the Hague Convention 2005 which provides with limited exceptions for proceedings to be dismissed where they are brought in a country that is different from the courts of the country agreed to have exclusive jurisdiction. The interesting point here was whether the enforcement of an adjudicator’s decision could be considered as an “interim measure of protection” which article 7 of that Convention excludes from its operation. The judge decided that as such a decision is only temporarily binding it can be considered as such an interim measure of protection. This is a very interesting point, but it might benefit from appellate authority.
Finally, in Martlet Homes Ltd v Mulalley & Co Ltd in the TCC in London, Pepperall J had to consider a claim brought just before the expiry of the limitation period in relation to works done to tower blocks in 2008. Given the defence that was served which alleged that the cladding would have to be remedied in any event post-Grenfell Tower events, the claimant sought to raise new matters in the Reply. Pepperall J struck out the offending paragraphs in the Reply, but permitted an application by the claimant to amend its Particulars of Claim to include the new claims.
About the Building Law Reports
Edited by members and former members of Atkin Chambers, the Building Law Reports are essential reading for legal professionals, construction industry professionals, law libraries and universities. Each report provides expert commentary on key judgments from the editors, including the substance of a case and its implications on past and future decisions.
Described as “the most established and authoritative construction law reports available”, they provide comprehensive coverage from the Technology and Construction Court, Court of Appeal, Supreme Court and other relevant jurisdictions worldwide, including Hong Kong, Australia and Singapore.
Consulting Editor: The Honourable Mr Justice Fraser
General Editors: Sir Robert Akenhead, Dominique Rawley QC, Marc Lixenberg, Omar Eljadi, David Johnson and Felicity Dynes.
