United Kingdom
On behalf of the team
On 29 September 2021, the Court of Appeal ruled on the claim lodged by 28 thousand individuals from the Bonga Community against Shell.[1] The primary issue in this appeal was whether the claims for remediation relief against Shell of the 28 thousand individuals from the Bonga Community could be pursued by two individuals from this Community by way of representative action. The Court of Appeal rejected the appeal and ruled that these claims could not be lodged in the form of a representative action. In its judgment, the Court of Appeal analysed the circumstances under which a case could be instituted as an action by representatives of persons with the same interest, along with the specific requirements and related limitations. The Court of Appeal was of the opinion that this was a threshold issue and that in this case, the claim could not constitute a representative action. Lord Justice Coulson stipulated that the fact that the claimants have the same interests is a basic ingredient and that this was entirely missing in these circumstances. In particular, the requirement of having the same interest was not satisfied with regard to the scope of the claim. Each individual claim would therefore be “tried to a conclusion”, which would lead to a patchwork of success – which, in his opinion, is not a representative action. For the Bonga Community, this means that each of its members would need to prove individually that he, she or it had individually suffered loss and damage. As a precedent, certainly in cases in which there is a need for an individual analysis of the causation and the loss and damage, claimants may experience difficulties in complying with the “same interest” test.
