CORE and ICJ welcome landmark UK Supreme Court decision in Okpabi v Shell

FOR IMMEDIATE RELEASE: 12 February 2021

Nigerian claimants can pursue environmental devastation
allegations against Shell in UK courts

Today (12 February 2021), the International Commission of Jurists (ICJ) and The Corporate Responsibility (CORE) Coalition UK welcome the judgment of the UK Supreme Court in the case Okpabi et al. v Royal Dutch Shell plc et al as a major step forward for those seeking access to justice for corporate abuses in the Niger Delta and around the world.

The Supreme Court judgment allows the case to proceed in the UK courts, reversing
earlier decisions by the Court of Appeal and the High Court, and reaffirming the
precedent established in its own previous decision in Lungowe et al v Vedanta
Resources plc (2019).

Mark Dearn, Director of CORE, said:

“This landmark ruling is a vital step towards justice for some 50,000 claimants from
the Ogale and Bille communities. It sends a clear message to multinational
corporations like Shell – you have a duty of care and you will be held to account for
human rights abuses and environmental damage caused by subsidiaries you control.

“Shell brazenly claimed in court that the oil spills were due to ‘uniquely Nigerian
problems’. But the unique problem long faced by communities in this region is Shell’s
impunity, as it has repeatedly tried to dodge accountability for its catastrophic
destruction of the environment and people’s livelihoods.”

“It’s now crucial that governments step up to the plate to create new corporate
accountability laws so that businesses know exactly what is expected of them.”

Carlos Lopez, Senior Legal Advisor at the ICJ, said:

“The emphasis of the Supreme Court on the relevance of evidence from internal
company documents is of utmost importance for the proper assessment of whether
the parent company intervened, advised or controlled the relevant activities of its
subsidiary, including notably human rights abuses and environmental destruction.

“This should have an impact on future similar proceedings before courts in the UK
and elsewhere.”

In Vedanta, the Court affirmed that a parent company that sufficiently intervenes,
controls or advises the relevant operations of its subsidiary may bear liability for the
breach of its duty of care towards the people affected by those operations.

Okpabi and other nearly 50,000 claimants in total – sued Royal Dutch Shell (RDS -the
UK based parent company) and its Nigerian subsidiary Shell Petroleum Development
Corporation (SPDC) for their alleged involvement in the leakage of oil pipelines which
destroyed their farming land, wiped out fish stocks and poisoned drinking water in the
Niger Delta, Nigeria.

In 2018 the Court of Appeal dismissed the claimants’ case, but the claimants
appealed to the Supreme Court. The ICJ and the CORE Coalition intervened before
the Supreme Court.

The Supreme Court has allowed the claim to proceed, focusing on whether the claim
had a real prospect of success and the high relevance of the internal company
documents for a proper assessment.

ENDS

Notes to Editors:

• This case was first launched in 2015 in the UK High Court. For a timeline of
the case’s passage through the UK court system, see here.

• The ICJ and CORE Coalition submitted a legal brief to the Supreme Court
setting out the applicability of comparative law and standards regarding
companies’ responsibilities in relation to human rights and environmental
protection. These standards showed that Royal Dutch Shell PLC (Shell) could
have duty of care in relation to the communities affected by its Nigerian
subsidiary’s activities.

• In 2018 the Court of Appeal dismissed the claimants’ case, ruling that Shell did
not exercise sufficient control over its subsidiary SPDC for Shell possibly to
hold a duty of care towards those affected by the oil spills.

• The Supreme Court judgment reverses that judgment, cautioning against
dismissing such claims in “mini-trials” without proper access to all relevant
facts and evidence that are in great part in the power of the company. The
judgment clarifies the evidential threshold needed for the courts to hear such
cases in the UK: “The resolution of the jurisdictional challenge depended upon
whether the appellants’ claim satisfied the summary judgment test of real
prospect of success.” (para 127 ref. Vedanta at para 45.)

• In another section the Court also corrected the Court of Appeal’s view that the
promulgation by a parent company of group wide policies or standards can
never in itself give rise to a duty of care, saying: “that is inconsistent with
Vedanta. Group guidelines … may be shown to contain systemic errors which,
when implemented as of course by a particular subsidiary, then cause harm to
third parties.” (para 143.)

• In Lungowe v Vedanta Resources plc, which CORE and the ICJ similarly filed
a joint intervention, the Supreme Court ruled that a duty of care was owed by
the UK parent company, Vedanta. A settlement was subsequently reached. As
the Supreme Court notes, this ruling was, “very relevant to both the procedural
and the substantive issues raised on this [Okpabi v Shell] appeal”.