Facts of the case

The case concerned an oil spill off the coast of Nigeria in 2011, which lasted around 6 hours, leaking crude oil into the sea.

Mr Jalla and others said that oil reached their land, causing damage. They argued that this was a continuing nuisance and therefore, while the oil remained on their land, a fresh right to bring a claim arose each day. 

This was significant because, without a “continuing nuisance”, the limitation period to bring a claim (6 years under English law and 5 years under Nigerian law) would have long expired.

No “continuing nuisance”

The Supreme Court endorsed the definition of private nuisance set out in the Tate case, namely that a nuisance arises where one person’s actions cause a “substantial and unreasonable interference” with the other’s use and enjoyment of their land. 

Nuisance is only actionable when damage occurs.  Damage can be physical damage to land or buildings but can also be the interference with use and enjoyment of land (which could be the case where the nuisance is a noise, smell or being overlooked).

In order to create a continuing nuisance Shell would have had to carry out a “repeated activity…or ongoing state of affairs…” which interfered with Mr Jalla’s use and enjoyment of his land “day after day or on another regular basis”.

The Supreme Court gave examples of where this is “commonplace” such as repeated instances of smoke, noise, smells, vibrations, or overlooking, which would give rise to fresh causes of action each time.

There was no continuing nuisance in this case because there was no repeated activity by Shell, or an ongoing state of affairs for which they were responsible. The leak was an “isolated escape”, which was stopped within 6 hours. Mr Jalla’s claim arose when the oil reached his land, and his present and future loss (including the cost of restoring his land) could be assessed at that point – there was no continuing cause of action for the whole period while it remained on the land.

This was because the cause of the damage remained the same: the one-off spill; there was no subsequent event which created new damage.

Nuisance and limitation periods

The Supreme Court also rejected the idea of a “continuing nuisance” in these circumstances as it would undermine the law of limitation and extend the limitation period indefinitely, meaning companies like Shell could be pursued for damages many years after one-off events.

It would also change the nature of nuisance from liability for the damage caused to a responsibility to restore the affected land.

What does this mean for UK property owners?

Continuing nuisance can arise from repeated conduct which causes damage, including substantial interference with the use and enjoyment of neighbouring land. However, in the absence of repetition, the right to bring a claim arises when damage is suffered, and there will be no continuing nuisance simply by virtue of the continuing effects of that damage.

Limitation periods remain as important as ever, and if a neighbouring landowner has caused damage to your property – or your use and enjoyment of it – act quickly, or you may lose your right to recover your losses.

Authored by Paul Tonkin and Lucy Redman