Litigation round-up April 2021

Jurisdiction

The Supreme Court unanimously allowed the claimants’ appeal, finding that the English court does have jurisdiction over group claims brought against Royal Dutch Shell Plc and its Nigerian subsidiary in connection with alleged pollution in the Niger Delta. The Court of Appeal materially erred in law by conducting a mini-trial in relation to the arguability of the claim at the jurisdiction stage.  The Supreme Court also held that it was reasonably arguable that the UK domiciled Shell parent company owed a duty of care to the claimants (Okpabi v Royal Dutch Shell Plc).

Adding parties

New claimants cannot be added to an existing claim form without permission using CPR 17.1, which allows a party to amend its statement of case before it has been served. In order for new claimants to be properly added to an existing claim form, a separate document recording their written consent must be filed with the court pursuant to CPR 19.4(4). The filing of an amended claim form, signed by the claimants’ solicitor, does not constitute such consent (Various Claimants v G4S plc).

Court issue fees

The Court of Appeal considered the conflicting case law concerning the status of a claim where the correct fee has not been paid within the limitation period. The present case concerned an amended claim and not payment of a fee at the outset of the action. The Court of Appeal held that if a new claim (not otherwise abusive) was made by amendment within the limitation period, it would not later become time-barred because a requisite court fee had not been paid (Butters v Hayes).

Unlawfully obtained evidence

The defendant alleged that emails had been obtained by the claimant’s unlawful hacking. The Court of Appeal reviewed the case law on the admissibility of unlawfully obtained evidence and agreed with the judge’s conclusion.  Even had he concluded that the claimant had hacked the defendant’s emails, he would not necessarily have excluded the illicitly obtained evidence as, without it, the claimant would have been unable to prove its claims and the defendant would have been left with the benefit of his seriously fraudulent conduct (Ras Al Khaimah Investment Authority v Azima).

Deliberate concealment

For concealment to be deliberate for the purpose of postponing the limitation period under section 32 of the Limitation Act 1980, the correct test is recklessness with both a subjective and objective element. For concealment under s32(1)(b), there does not have to be a free-standing contractual, tortious or fiduciary duty to disclose. An insurance intermediary which had failed to tell a customer about the very high level of its commission had deliberately concealed that information and the customer could rely on both s32(1)(b) and s32(2) to postpone the limitation period (Canada Square Operations Ltd v Potter).