Cross-border climate litigation develops at pace: Significant new claim threatened in the UK

The landscape of climate litigation is evolving rapidly, with a significant new claim announced last month against Shell in which claimants are attempting to use novel legal theories to hold a corporate accountable for climate impacts. The new claim is particularly significant (and interesting) as it seeks to recover damages from a corporate in the UK for the impacts of extreme weather events that are said to have caused injury and damage overseas, in the Philippines. 

A new front in climate litigation: Shell and Typhoon Odette survivors 

67 survivors of Typhoon Odette in the Philippines have initiated legal action against Shell in the UK. This claim seeks damages for losses, including property damage, personal injury and psychological trauma. The claim alleges that Shell’s historical greenhouse gas emissions (said to be 2.5% of historical totals) are a material contribution to anthropogenic climate change, which in turn is said to have significantly intensified the typhoon’s impact in the Philippines. 

The specific Philippine law claims that are asserted include negligence/quasi-delict (alleging that Shell failed to act responsibly despite its knowledge of the risks of the consequences of climate change, and in doing so caused harm) and unjust enrichment (alleging that Shell profited at the expense of the claimants while causing harm).

Notably, the claim also alleges that Shell violated the claimants’ constitutional rights to a balanced ecology, and breached the Philippines Civil Code requirement to act in accordance with “morals, good customs [and] public policy”. Significantly, the latter allegations are based on Shell’s alleged history of climate misinformation, which the much-publicised 2022 report on climate change by the Philippines Human Rights Commission identified as a possible factual basis for a claim under this provision of the Philippines Civil Code. 

This claim is novel, at least in England and Wales, in seeking to link damages caused by specific weather events to a company’s historical greenhouse gas emissions. 

The claim appears to draw on the recent German case of Luciano Lliuya v. RWE AG, where a Peruvian farmer sought reimbursement for flood protection costs, arguing RWE’s emissions contributed to the risk of his property being flooded in the future. While that appeal was dismissed due to the court appointed experts concluding that there was no real and imminent risk of damage to the claimant’s property, it appears that it has not deterred claimants from putting forward similar theories of liability, although this time by linking the alleged contribution to damage that has already occurred, rather than an increased risk of future damage. 

The claim also builds on a backdrop of other significant European climate litigation, including previous landmark cases targeting Shell. For example, in the Milieudefensie v. Shell case in the Netherlands, the Court of Appeal overturned the District Court’s order for Shell to reduce its Scope 1-3 emissions by 45%, holding that there is no legal basis for applying this reduction standard directly to individual businesses. In a 2023 UK derivative action, ClientEarth argued Shell’s board breached its directors’ duties by not adequately preparing for its energy transition, which was ultimately dismissed by the High Court with ClientEarth ordered to pay Shell’s costs.

The claim is currently at the pre-action stage, with a letter before action sent to Shell last month, and so it remains to be seen whether the claim will be formally filed with the court. For now, though, it seems that claimants are refining their approach to climate change litigation, with a view to overcoming some of the hurdles that have led previous claims to fail, and certainly, the risk of climate change litigation does not appear to be abating.