Environmental litigation

COP26, which took place in Glasgow in October/November 2021, brought a renewed focus on climate change issues. Although there has been some climate change litigation in England, to date no case brought here has found a UK company or director liable for climate change-related damage.

However, claimants (who might include non-governmental organisations, shareholders, investors, citizens, states or cities) are using increasingly diverse ways to launch cases worldwide and it is likely to be only a matter of time before a case against a UK company or director is brought here.

The procedural route used to bring an environmental claim may seem like a mere technicality, but a recent Court of Appeal decision has demonstrated how this issue can actually be "make or break" for claimants.

The two claimants in Jalla & Anor v Shell International sought to bring a representative action on behalf of "others" (some 28,000 individuals who had allegedly suffered damage following an oil spill in Nigeria, but who had not been identified in the claim form). Multi-party environmental claims can be brought before the English courts in three different ways:

• By applying to the court for a group litigation order (GLO), so that related claims can be managed in a coordinated way;
• By making all the claimants parties to the action in their own name but using a representative sample as "lead claimants" to decide the substantive issues; or
• By one or more individuals bringing a claim on behalf of other individuals in a representative capacity, provided they all have the "same interest". This was the method attempted in this case – it seems the advantage of using this route here avoided potential limitation arguments because it "backdated" the start of the claims of the 28,000 individuals to the date of the claim form, even though the claim form had not mentioned them.

The Court of Appeal acknowledged that it can be appropriate to bring a representative action in certain pollution cases (for example, where an injunction is sought to stop polluting emissions). But it was not appropriate in this case: that was because the individual claimants would all need to prove separately what damage they had sustained to their land. Accordingly, they never shared the requisite "same interest". As the Court of Appeal put it: "it appears to be a sad fact that there is much oil pollution in this area. The represented parties would need to demonstrate, in each case, that the oil spill which they say caused them damage was the spill for which, on their case, the respondents are responsible".

The Court of Appeal said that a GLO could "and perhaps should" have been sought given the facts of this case, and it seems likely that seeking to bring a representative action instead will now result in the claims of the 28,000 being time-barred.

The issue of climate change is also starting to influence the litigation process itself. In what appears to be the first decision of its kind in England, the judge in Brooke Homes (Bicester) Ltd v Portfolio Property Partners Ltd referred to the need for judges to consider climate change implications when making case management decisions.

The Civil Procedure Rules provide that judges must further the overriding objective by actively managing cases and active management includes "giving directions to ensure that the trial of a case proceeds quickly and efficiently".

In a postscript to the case, the judge – Hugh Sims QC – said that "In my judgment efficiency under CPR 1.4(2)(l) can include the consideration of carbon reduction efficiency". Although not the only consideration here, it was part of the reason why the judge was prepared to use electronic technology to allow witnesses to give evidence not just from abroad but also from other parts of the UK.

The judge also noted that in the Annual Combar (Commercial Bar Association) lecture given in November 2019, Sir Geoffrey Vos (the then Chancellor of the High Court and now Master of the Rolls and Head of Civil Justice) forecast that climate change would be a factor in the future conduct of litigation and use of modern technology. Covid-19 protocols have accelerated the pace of that change and we are likely to see further developments in 2022.