Continuing nuisance and limitation in the Court of Appeal: Jalla v Shell

Abstract

large geographical area involved, can be (and in Jalla 2 perhaps is) the subject of perfectly workable litigation: it is just not possible to categorise it as a representative action under r.19.6. 13 This litigation has been bedevilled by problems, many of which arise from the limitation issues, and others from the way in which it has been set up and run. Those problems are, I am afraid, the claimants ’ responsibility. Their unconventional attempts to avoid the defendants ’ limitation defences (by way of the assertion of continuing nuisance and the suggestion that the 2017 action was a representative action) have been rejected by every court which has considered them. In some ways, this is a claim that is facing death by a thousand cuts. 22 The paradigm example of a continuing cause of action in nuisance is the tree-roots case. The roots of a landowner ’ s tree spread, and encroach under the neighbouring land. The roots begin to undermine the foundations of his neighbour ’ s house. Until such time as the landowner cuts down or severely prunes back the tree in question, he is responsible for the continuing encroachment of the roots. The tree roots therefore comprise a continuing nuisance. The landowner ’ s failure to abate the nuisance by dealing with the tree is a continuing one. 33