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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Berebon & Ors v The Shell Petroleum Development Company of Nigeria Ltd [2025] EWHC 847 (TCC) (25 March 2025) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2025/847.html Cite as: [2025] EWHC 847 (TCC)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		25 March 2025

 


Mrs Justice Jefford

1. There are before the court today three matters. Some of the submissions have ventured into other areas, but it is not necessary for me to go beyond the three matters that were listed before the court. I intend now to give judgment in respect of all three matters. I should say at the outset that I will be perhaps a little briefer than I would like to have been, given the shortage of time. I would emphasise that I have been greatly assisted by the submissions of counsel, particularly today, with significant efforts made to reduce the scope of the arguments and focus on key issues, and the fact that I do not mention any particular submission that has been made to me - and I hope this will be obvious from my interventions in the course of the hearing - does not mean that it has been ignored in some way.
2. The background to this matter is set out at considerable length in earlier judgments of Mr Justice Akenhead [2014] EWHC 1973 (TCC), Mrs Justice O'Farrell [2024] EWHC 276 (TCC) and Mrs Justice Joanna Smith given on 19 November 2024. In the circumstances of this application, I do not intend to repeat the background that is set out in those judgments.
3. It is sufficient to say that this case concerns two major oil spills in 2008. The defendant's position is now that a successful clean-up operation has been carried out and certified by the relevant regulator in Nigeria. The claimant's position is that the clean-up has not been adequate and they seek an injunction requiring the clean-up to be carried out to "higher" standards or damages in lieu.

Amendments to the Particulars of Claim

4. 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.
5. 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.
6. 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.
7. 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.
8. At [103], she recited the defendant's position. She said this:

"The court then turns to consider whether the clean-up claim is fundamentally flawed as a matter of Nigerian law and English law and bound to fail. The defendant submits that:

(i) The mandatory injunction sought by the claimants is redundant.

(ii) The clean-up claim would necessarily require the court to adjudicate on the validity or effect of executive acts of foreign government agencies but that would be impermissible as a matter of English law pursuant to the act of state doctrine ..."

I am not going to recite (iii) and (iv).

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

"Although there is clear evidence that the BMI clean-up process is almost complete, for the reasons set out above, there is a real dispute between the parties as to the adequacy of the work undertaken that is not suitable for disposal on the summary basis. Therefore, it cannot be said with any certainty that an injunction, or other declaratory relief, would be redundant."

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

"The defendant's submission is that the claimants' residual clean-up claim is non-justiciable by reason of the act of state doctrine and the court should dispose of this jurisdiction challenge on a summary basis."

The judge then set out the relevant law. She, in effect, rejected the argument that the clean-up claim necessarily involved the English court questioning the validity or effect of acts of the Nigerian regulator's executive agencies and thus fell foul of the act of state doctrine. She said that that turned on the proper characterisation of the clean-up claim and, at paragraph 110, that the pleaded case was that the claimants were entitled to appropriate clean-up and remediation of the Bodo Creek and that they sought a mandatory injunction for the same or damages in lieu.

11. 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.
12. O'Farrell J then said at [113-114] of her judgment:

"113. There is no inherent question as to the lawfulness or validity of the clean-up and remediation activities of the Nigerian regulators and executive agencies. The court's determination of the residual issues in the proceedings would not necessitate any direct or collateral adjudication regarding the Nigerian government policy, value judgements by the regulators, justification for methods adopted, or the competence and integrity of Nigerian executive agencies. If, and to the extent that, the claimants sought to frame their residual claim by reference to wider issues, such as legitimacy or general efficacy of the relevant regulations, oversight and enforcement of clean-up operations, the court would reject any claim that crossed the line so as to trespass on the lawfulness or validity of executive acts.

114. Accordingly, I do not accept that the pleaded clean-up claim necessarily requires the court to adjudicate on the lawfulness or validity of state actors. For the purpose of the test on the summary judgment/ strike-out application, the court is satisfied that the clean-up claim is not bound to fail by reason of the Act of State doctrine."

13. 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.
14. 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.
15. 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.
16. 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]:

"Second, I agree with Dr Blake that the way that this is now pleaded appears potentially to involve crossing the line into challenging the lawfulness and validity of the clean-up and remediation activities of the Nigerian regulators and executive authorities, something that O'Farrell J expressly indicated at paragraph 113 of the O'Farrell judgment would not be permitted. Mr Parratt [counsel for the claimants] suggested in his skeleton argument and in his oral submissions that this was a matter which could be addressed at trial, but it is, in fact, not a matter that O'Farrell J thought could or should be dealt with at the trial. Mr Parratt raised what appeared to be new arguments on this during the course of the hearing today. It is not clear to me exactly what case is now being advanced. However, what is plain is that the judge was only prepared to lift the stay on the basis that there was no such challenge."

17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.

The Contested Evidence

31. The second matter in issue is the so-called contested evidence. This falls into three categories.
32. The first is a number of reports that were previously produced and served in this litigation, which are helpfully listed in Appendix A to Mr Leader's 14^th statement. I do not propose to recite them. As I said, my reasons for my decisions are going to be, in the interests of time, slightly shorter and in that sense less detailed than they might otherwise be.
33. The claimants have relied on these, if I can call them this, old reports when disclosing key documents in rebuttal in purported compliance with the order of O'Farrell J for the service of factual evidence, expert evidence and key documents in rebuttal.
34. The claimants say that they do not seek to adduce these reports, which are in the form of experts' reports, as expert evidence and do not intend to call the makers of the reports to give evidence. That immediately raises the question of what reliance is being placed on them and what weight can be attached to them. What is said by the claimants is that the reliance sought to be placed on them is reliance of their instructed experts for the purposes of the upcoming trial, and that their experts seek to rely on the previous reports in the context of the issue of the volume of oil that was spilt in 2008.
35. As will be apparent from my observations in the course of the hearing, I have some difficulty in understanding how this point, that is volume of oil spilt in 2008, has found its way into these proceedings, or at least found its way into these proceedings at this stage, with the suggestion that it raises a new point.
36. There was, on the face of the pleadings, an issue between the parties as to the volume of oil spilt in 2008. However, by the time it came to the applications before O'Farrell J and that is clear from her judgment. As far as she was concerned, the issues that remained to be dealt with were the adequacy of the clean-up operation and what should be done or what the court might be able to do if it were found that the clean-up operation was inadequate. The question was, therefore, whether there was still what might be called 2008 oil present, that ought not to have been present, rather than the volume that was spilt in 2008.
37. The claimants initially seemed to argue that the volume of oil spilt in 2008 had come back into play because of a new case advanced by the defendant in amendments to the Defence. Again, I simply do not understand that because the case as to the volume of oil spilt had always, in one sense, been in issue, but, at the risk of mixing my metaphors, seemed to be water under the bridge.
38. It seems to me that if the volume of oil was a matter that that the claimants relied on as going to the volume of oil that remained, it was always in issue and it was a matter for the claimants' case. The defendant had always said it did not accept the figures and, therefore, to the extent that the claimants intended to rely on how much oil had been spilt as evidence of how much oil remained, that is patently a matter that could and should have been raised considerably earlier in the present proceedings. It does not arise out of amendments to the Defence.
39. However, the position is that the claimants' experts in their responsive reports referred to what I have called the old reports as part of their response to the defendant's evidence. The old reports are not evidence in themselves and there is nothing particularly surprising in an expert placing some reliance on another earlier report, including one prepared by someone else. It is very much a matter for the court to decide what weight to give to evidence of the experts called at trial that is predicated on some other report whose author is not being called to give evidence. It is certainly not the case, as Dr Blake appeared to suggest, that reliance on other materials is something that the court would only permit if the underlying documents were some sort of peer reviewed academic papers.
40. The effect of the defendant's objection to the claimants' relying on these old reports is that the court should somehow disentitle the claimants' experts from referring to these reports and explaining what reliance they place on them, including reports previously served by the defendant.
41. The defendant argues that if the court does not do this, and somehow disentitles the claimants' experts from referring to the old reports, it will open up a whole raft of evidence because the defendant and the court will have to go into all of the old reports as if they were themselves evidence and as if their authors were being called to give evidence. The defendant says that it will need to serve further responsive evidence and that if it does not have the opportunity to do so the process will be fundamentally unfair.
42. Much of this submission is predicated on the argument that this issue, that is volume spilt in 2008, is a central issue or has become the central issue in the claimants' case, albeit the defendant's position is that it is not relevant at all.
43. With respect to the submissions made to me, it does seem to me that this was all overstated. The volume of oil spilt in 2008 may be an issue but it is not the key issue. The evidence that will be adduced at trial is that of the claimants' experts. They are properly entitled to refer to other reports that preceded them. All of those reports have been available to the defendant's experts and, if there was some matter that the defendant's experts wanted to raise from them, it was open to them to do so.
44. All that has happened is that the claimants' experts have referred to these reports in their responsive reports and the court will decide what weight to give to the expert evidence adduced in reliance on those old reports. There simply does not need to be a further round of responsive reports because the claimants' experts have done that and it does not open up a whole new raft of evidence or area of dispute.
45. That is the general position. There is an exception, which is the so-called Wereley Report, which seems to me to fall into a slightly different category and is the second category of contested evidence. Insofar as it is needed, I give permission to rely, in the sense that I have already indicated, that is by reference in another report of an expert being called at trial, on the unsigned report of Mr Wereley. That has now been signed, and that seems to me to simply have regularised the position. But I do not give permission to rely on any further evidence that Mr Wereley might have given in supplement to his original report.
46. The original report, as Mr Hyam has pointed out, was relied on by Mr Rogers, the claimants' expert, and responded to by Dr Boehm. They are both experts in their own fields and they were in expressing views on a report of someone in a different field. They are in the same position. There is no need for the defendant to obtain further responsive evidence to an expert who is not being called.
47. Although, as I have said, signing of the report regularises the position, adding to it does not and that is not to be permitted.
48. The third category of contested evidence is the so-called December sampling. I have heard in the course of the evidence, and indeed it was set out in the evidence particularly of Mr McCloskey, that the defendant's position is that they took issue with the manner in which the claimants intended to carry out sampling almost from the beginning of steps taken in compliance with the Order of O'Farrell J.
49. O'Farrell J ordered that the experts of like disciplines should "have an initial meeting to discuss the methodology for carrying out any further testing and sampling in relation to the issues in the case … and to continue meeting as often as necessary and for as long as necessary … in order to ensure that the experts understand and are agreed upon the general scope of the expert issues in this case". I have been referred to a note of a single meeting of the experts held on 31 May 2024 in purported compliance with this order. The note is in the form of a quasi verbatim note of who said what. It is almost impossible for the court to decipher what was agreed and there appears to have been no attempt to reduce the outcome of the discussion to a coherent expression of what testing and sampling methodology was agreed and what the issues were understood and agreed to be. That was not expressly ordered by the court but common sense and good order dictated that that should have been done. It is at least apparent from the notes of that meeting, however, that the nature of sampling or the manner in which sampling was to be undertaken was under discussion, as ordered by O'Farrell J.
50. What followed was that the defendant set out more fully what it considered to be wrong, putting it broadly, with the claimants' approach to sampling. That was known about in June 2024 which was when the sampling was carried out and whether shortly before the sampling was carried out or when it was being carried out or shortly afterwards frankly does not matter. The defendant's position was known about. Despite that, no further sampling was carried out by the claimants between June and December 2024.
51. As Dr Blake submitted, that appeared to be because the claimants' position was that the so-called biased sampling that they had carried out was the appropriate way to carry out sampling rather than something that might, in layman's terms, have been regarded as more representative.
52. It is not, I therefore accept, the case that further sampling was not carried out by the claimants until December 2024 because they did not understand the reasons for that being appropriate. I do not criticise them for carrying out sampling in June in the manner that they did. That was what they intended to do and they made it clear. Whether the claimants adopted an appropriate methodology and the validity of that sampling are matters for trial. But knowing, as they clearly did, what the defendant said was wrong with that approach, they did nothing about it until December 2024.
53. It may be thought from that that my conclusion would be that the claimants should not be permitted to rely on the further sampling. However, once again, I take the view that the defendant protests too much. It is not uncommon about further sampling and testing being conducted after a first round and before the trial and there is nothing particularly exceptional in this case about that. It is very much a matter for the court to decide whether a party should be permitted to rely on such further evidence.
54. In this case, the results of the further sampling were shared with the defendant immediately they were received. Further it appears that the defendant's experts were capable of addressing that evidence when they came to hold without prejudice discussions and to produce a joint statement in mid-March, approximately ten days ago.
55. I accept, as Dr Blake submitted, that observations of the experts made in the joint statement are not the same as a further responsive report. But what they do indicate is that the defendant's experts have no particular difficulty in addressing these further samples and in setting out their position in relation to them. In doing so, the defendant's experts did not identify any further sampling or testing or analysis that they would wish to undertake and, when asked at the hearing, the defendant was unable to identify anything the experts would wish to do to respond further.
56. I, therefore, give the claimants permission to rely on the December sampling but I will make provision for the defendant's experts as appropriate to serve a short responsive report to the new samples. Bearing in mind that they have already set out their areas of disagreement in the joint statement, it seems to me that that can be done in fairly short order.

Evidence of Nigerian Law

57. That brings me lastly to the issue of the evidence of Nigerian law.
58. It is somewhat remarkable that, despite the fact that there is a decision of Akenhead J, and clear agreement between the parties, that this dispute is subject to Nigerian law, the court has not always had before it evidence of Nigerian law. It is trite to say that an English court decides matters of foreign law as if they were matters of expert evidence. That necessarily requires expert evidence of the foreign law to be placed before the court.
59. The only explanation for why no directions were given in respect of Nigerian law evidence by O'Farrell J in April last year, or at any time thereafter, is that it seemed to be common ground between the parties that no issues of Nigerian law arose and/or that they had already been decided by a court in this jurisdiction.
60. I observe that that would appear to be the case because of the decision of Akenhead J over a decade ago. His decision was concerned with a series of preliminary issues. The first of those preliminary issues was "... whether the claimants are only entitled to claim compensation in respect of the 2008 spills under the OPA", the OPA being the Oil Pipelines Act of 1956, a Nigerian statute.
61. Akenhead J decided that the claimants' claims were not limited to compensation under that statute. The arguments in respect of that issue addressed whether common law remedies such as injunctions survived outside the statutory regime and that the judge's reasoning on that issue formed part of his conclusion on the preliminary issue. He concluded that common law remedies did survive and it seems to me that his decision on the availability of an injunction outside the statutory regime formed a part of his decision on the preliminary issue and was not, as has been suggested at various points, simply an obiter part of his judgment. As Mr Hyam put it, the issue that Akenhead J had before him was whether the OPA was an exclusive or comprehensive regime and, in short, he decided that it was not.
62. Similarly, it is quite clear to me, as I have already said, that O'Farrell J proceeded on the basis that a mandatory injunction might be an available remedy and regarded herself as bound by the decision of Akenhead J.
63. However, Akenhead J's reasoning was entirely based on whether a prohibitory injunction or quia timet injunction was available outside the statutory regime, and he was not specifically concerned with the issue of a mandatory injunction. As I put it to Mr Hyam in the course of argument, even if this were a matter of English law, the court would expect to be addressed on the principles on which an English court would grant a mandatory injunction, which are significantly different from those on which the court will grant a prohibitory injunction and were addressed in the submissions of the claimants for this application.
64. It would be, it seems to me, inappropriate for this court to proceed on the basis that, because the issue has not previously been raised, the common law of Nigeria is to be equated with the common law of England and Wales in respect of the principles relevant to the grant of a mandatory injunction.
65. I, therefore, indicated in the course of the hearing that the court would at the very least be assisted by evidence in relation to the Nigerian position on the grant of mandatory injunction and the claimants, although they oppose the defendant's application to adduce evidence of Nigerian law, were content to allow that limited scope of evidence to be adduced. Certainly, therefore, the defendant's application to adduce evidence of Nigerian law should be granted in respect of the mandatory injunction issue.
66. However, the evidence of Godwin Omoaka which it is sought to adduce goes somewhat further than that and deals more broadly with the question of whether injunctive relief is available at all. The claimants object to the admission of such evidence essentially on two grounds.
67. One is that the point has already been decided by Akenhead J and that this would cut across that decision. In that respect, they rely on what was said by Joanna Smith J when she dealt with this matter last November. At the time there was no report before her, but she indicated that the court might be assisted by Nigerian law evidence which did not cut across the decision of Mr Justice Akenhead. Insofar as Mr Omoaka's report does so, in arguing that the Nigerian law position is that the OPA is a comprehensive set of remedies and that no other remedies are available, the report clearly does cut across that evidence.
68. It was, therefore, my view for much of this hearing that I should require the defendant to edit the report to limit it to mandatory aspect of the injunction argument. However, what emerged in the course of the oral argument was that Mr Omoaka's position was that there had been subsequent decisions, or at least a decision, in Nigeria which changed the position from that which had been decided by Akenhead J.
69. That seems to me to pose a difficult issue for this court, which is whether this court should regard itself, on a foreign law, matter as bound by the earlier decision of an English court or should admit evidence as to an apparent change or clarification of the law of a foreign jurisdiction and decide the case on a different basis from that which had previously been decided by an English court.
70. That issue, with the greatest of respect, does not seem to have been anticipated or argued in the skeleton arguments that were presented to me, and I have to say came as something of a surprise in the course of this hearing. That is not to say that the issue was not addressed in Mr Omoaka's report but rather that its significance had not been highlighted to this court.
71. The position is frankly unsatisfactory. The decision that is relied on in this respect in Nigeria is one from 2017. These matters were therefore known to, or ought to have been known to, the defendant when the matter was before O'Farrell J, and, if there was going to be an argument in relation to Nigerian law in any respect, permission for expert evidence ought to have been sought at that time. It is, to say the least, unsatisfactory that such an application was left until the hearing before Joanna Smith J without a report available, and that a report was not then provided until December. It is equally unfortunate that there has then been a further three-month period before the matter came back before the court.
72. I am sufficiently concerned about the issue I have referred to as to the approach this court would take where Nigerian law has changed or clarified in the decade since the decision of Akenhead J that I will permit the defendant to rely on this report in its entirety and not merely in relation to the limited issue of the mandatory nature of the injunction sought.
73. I appreciate that that puts the claimants in some potential difficulty in responding to the report in short order. However, they have had it available to them since last December. They have indicated that they have a Nigerian law expert available to them, and even with that expanded scope the evidence is still principally concerned with two issues: (i) is the OPA an exclusive set of remedies and (ii) if not, what would be the approach in law or principle of a Nigerian court to the grant of a mandatory injunction?
74. There are still six weeks before the start of the trial and it does not seem to me to be unrealistic for the claimants to obtain a report from their Nigerian law expert in that period for the purposes of the hearing due to start in May. I would encourage the experts to hold a without prejudice meeting to see if there are matters that they can agree upon. That would obviously be the normal approach, but if that cannot be done until shortly before the trial, or even during the course of the trial but before they give their evidence, that is what will have to happen.
75. I do appreciate that much of that leaves the parties with quite a lot of work to do before the start of the trial, but I am sure they have always anticipated that to be the case.
76. I am not going to make any further decisions on any of the matters that have been raised before me or any further directions. I bear in mind that it is now 5.30pm. That will explain why I would ask the parties to seek to agree between them any consequential orders in terms of timing. There are some suggestions given in the skeletons and the witness statements I have so far seen, so I would hope that that would be capable of some form of agreement.