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Shell has been accused of knowingly misleading the English courts in an attempt to avoid facing trial in the UK over oil pollution in Nigeria, according to newly amended legal documents filed at the High Court.
The allegations, which Shell denies, form part of a long-running legal battle brought by the Bille community in the Niger Delta seeking clean-up costs and compensation for decades of oil spills. The case is due to go to trial early next year and could become one of the most significant environmental claims faced by the UK-listed energy group.
The UN has previously said remedying the oil pollution in the Niger Delta may require “the most wide-ranging and long term oil clean-up exercise ever undertaken”. Shell has maintained that the vast amount of oil that seeped into the wetlands was caused by criminal gangs who tapped into and looted oil from its huge network of pipelines.
In earlier proceedings, which eventually reached the UK Supreme Court, Shell argued that the claims should not be heard in England because responsibility for the relevant operations lay with its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria, or SPDC.
At the time, SPDC was the operator of a joint venture with the state-owned Nigerian National Petroleum Corporation, Total of France (now TotalEnergies) and Italy’s Agip (at the time part of Eni).
The newly amended pleadings, which have been filed by lawyers at Leigh Day who represent the Bille community, allege that Shell “knowingly gave and/or relied upon false and/or misleading evidence” during that jurisdiction fight in order to prevent the claims “from proceeding to trial”.
The claimants say Shell presented SPDC as operationally autonomous when, in fact, Shell’s senior executives exercised “a high level of control, direction, oversight and/or supervision” over the Nigerian business. They allege Shell “acted in concert” with SPDC in managing and operating the pipelines that spilled oil.
The pleadings cite evidence given in 2016 by Michiel Brandjes, Shell’s company secretary at the time. He said it would be improper for Shell “to intervene in, or otherwise control or dictate the policies of an operating company”. He also said control over SPDC’s health and safety practices in Nigeria “plainly lie within SPDC itself” and that the subsidiary did not “rely” on Shell “in relation to these matters”.
The claimants also cite evidence from Osagie Okunbor, then managing director of SPDC, who said there was “no interference” by Shell in SPDC’s daily operations, including maintenance, security and oil spill response.
Newly disclosed internal communications, the claimants argue, undermine that account. In one July 2008 email cited in the pleadings, Malcolm Brinded, then head of exploration and production at Shell, told Ann Pickard, then head of Shell’s Africa business, that he was “uncomfortable” with SPDC’s practice of diverting polluted material into unlined pits during clean-up operations.
“I see the photos — which indeed give the impression that after remediation we have adequately dealt with pollution,” Brinded wrote. “We all know that an apparently uncontaminated surface layer does not mean the ground below has really been adequately remediated.” He added that in another country, Shell might have been required to “find other solutions”.
The claimants allege that Shell’s jurisdiction challenge, launched in 2015, was “calculated to impede” their ability to obtain redress and delayed the litigation by more than five years, during which they say pollution continued to damage local communities.
The amended pleading also alleges that Shell was responsible for the “widespread deletion of data” belonging to key figures in the case, and failed to put in place a “systematic or reliable data retention” process, resulting in relevant emails being lost.
Shell has yet to file an amended defence in the case. A spokesperson said it was “not the case” that it had misled the UK courts. “These individuals gave evidence which was true and accurate to the best of their knowledge and belief at the time,” they added.
Shell also denied any failure to preserve documents.
“The claimants are attempting to mischaracterise ordinary data retention policies as evidence that relevant material was improperly destroyed or withheld,” the spokesperson said.
“Shell and Renaissance retained documents in accordance with standard industry practice, and reviewed a large volume of them before disclosing over 315,000 to the claimants.”
Shell said it strongly believed in the merits of its case and would vigorously defend the claims at trial. The company has previously said SPDC spent hundreds of millions of dollars cleaning up pollution in the Niger Delta and that clean-up certificates were issued by Nigeria’s oil spill regulator.
Brandjes and Okunbor did not immediately respond to requests for comment.
