HT-2013-000028 - [2025] EWHC 847 (TCC)

The nature of the injunction sought is of course a mandatory injunction and the first matter before the court is whether a draft amendment which seeks to plead out the terms of the mandatory injunction that will be sought should be permitted.

The background to this is that, after a long period of stay of the proceedings since 2014, the case came back before O'Farrell J in May 2023, judgment being given in February 2024. The applications that were before O'Farrell J were the claimants’ application to restore the proceedings and the defendant's application to strike out. The defendant’s application was dismissed and the proceedings were restored but in respect only of the clean-up operation, all other matters being regarded as already dealt with, decided or compromised.

O'Farrell J then gave directions to trial, and following a further hearing on the terms of her directions, they were directions that led to a trial to be heard in this court starting on 7 May 2025.

It is quite clear to me that there has always been in these proceedings a pleaded claim for a mandatory injunction. Apart from referring to the pleadings themselves, that is clear from the judgment of O'Farrell J.

At [103], she recited the defendant's position. She said this:

In respect of the argument on redundancy of relief, O'Farrell J said at [104]:

In relation to the act of state doctrine, she said at [105]:

I refer to those passages because, in my view, they make it clear that there was, certainly when the matter was before O'Farrell J, an understanding between the parties, and, indeed, an understanding of the court, that, to put it in very simple terms, the claimants were saying that what was being done pursuant to the Bodo Mediation Initiative (“the BMI”) as approved by the regulator was not regarded by the claimants as proper or sufficient. That was the background and scope of the issue that was still before the court.

O'Farrell J then said at [113-114] of her judgment:

It was, therefore, clear that the claim for a mandatory injunction was, in the judge's view, sufficiently arguable not to be struck out and the directions for trial that followed must have proceeded on that basis and on the basis that the arguments in relation to the act of state doctrine, which had not been decided on a summary basis, would remain open to the defendant but were matters for trial.

The judge went on, however, to say that the terms in which the mandatory injunction was pleaded - in essence with absolutely no particulars of what it was being said the defendant should be mandated to do - were inadequate. But she left it open to the claimants to seek to formulate the requirements of an appropriate order.

The claimants then sought to make such an amendment and that application came before Joanna Smith J on 19 November 2024. She considered that what was then proposed was vastly outside the scope of what O'Farrell J had anticipated and would vastly expand the scope of the trial which was anticipated and had been ordered. The reasons for that view were principally, as she said, ones of case management. The terms of the mandatory injunction as framed incorporated an assessment phase, (that is assessing what the current situation was); then a decision as to what was to be done (which appeared to involve some form of dispute resolution board or something of that nature); and then an implementation phase (to be agreed). There were other aspects of the proposals that the judge also considered went well beyond the scope of the trial which was anticipated and had been ordered. Joanna Smith J declined to allow the amendment.

At the time of that hearing, Dr Blake also advanced arguments to the effect that the amendment ought not to be allowed because it was bound to fail. Joanna Smith L expressed herself to have considerable sympathy with the submissions that Dr Blake had made to that effect. I do not propose to recite them all. It is not material. But one of them was the state action doctrine, and about that she said at [47]:

With the greatest respect to the judge, and without knowing the detail of the submissions was referring to, I do not entirely follow that passage, and it does seem to me that O'Farrell J was leaving open to trial the argument on the state action doctrine which she had not thought could be decided on a summary basis one way or the other. But, in any event, Joanna Smith J was herself also not deciding that point. Rather she was expressing her sympathy with it on the basis of the mandatory injunction that it was then sought to plead.

The judge gave the claimants one last opportunity to propose an amendment which was not met by the multiple objections that she had already outlined. They have, as a result, sought to amend to particularise the claim for the mandatory injunction as set out at paragraph 168 of the draft Re-Re-Re-Re-Amended Particulars of Claim. I should just note for the avoidance of any doubt that that draft appears in the bundle with the words "Amended pursuant to … the order of Smith J dated 25 November 2024" as if these are amendments for which permission has already been given, whereas, in fact, as I have already set out, the claimants were being given an opportunity to put forward a further draft amendment which would either be consented to or could be ordered by the court. I make the point simply to avoid confusion.

The terms of the mandatory injunction which it is now sought to include by amendment include a broad injunction to remediate the contaminated Community Land to end point standards which are protective of ecological and human health receptors.

The pleading then goes on to use the term "namely" to set out what those end point standards, protective of ecological and human health receptors, are said to be, and contains very specific requirements, if I can use that slightly colloquial term, namely: (i) that the defendant shall remediate certain areas to specified standards; (ii) that there shall be sampling carried out in a particular manner; (iii) that the samples are to be analysed by a particular laboratory in the United Kingdom; and (iv) that they should be taken at staged intervals. The sampling and testing processes and evaluation of data shall then be verified by three experts in an expert panel, the constitution of which is set out in the proposed Order, and any disputes resolved by the expert panel. Lastly, there is a proposed requirement that those testing results shall be shared with various representatives of the community.

It seems to me that the claimants have endeavoured to draft the terms of that injunction so that it is focused on outcomes, that is, the achievement of certain standards. However, for the purposes of doing so, they have also included steps in relation to implementation which I have to say give me considerable cause for concern.

Dr Blake has submitted again that the amendment ought not to be permitted, in any event, because it is bound to fail because of the act of state doctrine. He has submitted that the important point is the role of the regulator who has set the relevant standards and certified compliance with those standards in the clean-up operation. If this court, by making of a mandatory injunction in the form proposed by the claimants, seeks to impose different site specific target levels (“SSTLs”), that, he says, crosses the line identified by O'Farrell J. He also submits that there would be interference with state policy if the court were to decide that testing should be conducted outside Nigeria contrary to policy in Nigeria.

I summarise his arguments but all of these points seem to me potentially well made. However, at the same time, they involve and require, amongst other things, detailed consideration of the regulatory position and regulatory standards. It may be that at the end of trial, a mandatory injunction, formulated as set out at paragraph 168 of the draft amendment or otherwise formulated in light of the court's decisions, would not amount to an improper interference of this court with acts of state actors in Nigeria but that is simply not a decision that can be reached on this application. Equally, the opposite conclusion cannot be reached. For the reasons I have already given, this does not seem to me to be a matter that has been ruled out of the subject matter of trial.

I should add that there are other aspects of the mandatory injunction which Dr Blake submits are, to put it lightly, problematic, such as the constitution of an expert panel to decide and resolve whether the clean-up operation has been properly, on the claimant's case, carried out. Again, it seems to me that there may well be a question mark over whether that is something that this court can properly order, and issues may arise as to the jurisdiction that this court would have over such an expert panel. But as I have said, it seems to me that the claimants have endeavoured to provide the court with a form of mandatory injunction which seeks to focus on the outcomes and asks the court to decide if the outcomes have been achieved, rather than exercise constant supervision, and, without pre-empting any arguments one way or the other, those are all matters that should be addressed at trial.

Returning to whether the application for permission to amend should be permitted, it is essentially the defendant's case that it is so obviously bound to fail that it should not even be pleaded. Mr Blake has in particular submitted that it would be wrong for the court to engage in an eight-day hearing where there is a fundamental jurisdictional objection and by that he has in mind the impact of the act of state doctrine. He submits that the court keeps putting off dealing with this issue, and initially submitted that it should be dealt with on this application, although in light of my indications he did not persist in that argument.

The answer to that seems to me to lie not only in case management but in the fact that no application to have this issue dealt with, for example, as a preliminary issue has previously been made. It is not the case that the issue has only now arisen because it has always been the case, since the claim was revived, that the claimants argued for standards of clean-up that differed from those that had been applied, and therefore their case must have called into question or put in issue the acts of the regulator and the certification of the regulator of the clean-up operation.

One further issue is the argument that this is a late amendment. In one sense it is because this application is being heard less than two months before trial. However, it is one that has been advertised for some time and is intended to particularise the injunction that has always been sought. If it were not permitted there would be a curious position in which the claimants’ case would be that they sought a mandatory injunction without any definition of what that mandatory injunction was and against the background that O'Farrell J had already observed that it was inadequately pleaded in that form.

Dr Blake argued that looking at a mandatory injunction as something which had always been in play was not the right way of looking at things because the position post clean-up was very different from when a mandatory injunction was first pleaded, there had been no clean-up. and it was not the focus of the pleaded case. That is in essence right but the position is not different from the position before O'Farrell J when the clean-up was said to be 87% complete, the proceedings were revived and the mandatory injunction was the focus of the proceedings.

In my judgment, therefore, the parties are in the same position that pertained at the time of that hearing and at the date of judgment, and indeed the further orders leading to trial. The terms of the injunction sought, and whether the act of state doctrine was engaged and was potentially a knockout blow, were and, in my view, remain matters for the trial.

I will therefore allow the application to amend the Particulars of Claim in the form of the draft submitted. There may need to be consequential directions for further amendments to the Defence but I would hope that those could be dealt with after this hearing by sensible agreement as there are no proposals before me and certainly no time to deal with such directions this afternoon.