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Although ClientEarth has formidable hurdles to overcome if it is to pursue the claim given a preliminary decision of the English High Court on 12 May 2023 to refuse permission for the proceedings to go forward, it has arguably already scored a public relations victory for its cause.
According to its press release, ClientEarth first wrote to the board of Shell in March 2022 notifying it of this potential claim. This was the same month in which Shell lodged an appeal against a May 2021 decision of the Hague District Court. In that case, the court had ruled that under an unwritten duty of care in Dutch tort law, Shell has an “obligation of result” to reduce CO₂ emissions resulting from Shell group’s activities, and a “best-efforts obligation” to reduce emissions generated by its business relations, including suppliers and endusers. Although this case was brought not by ClientEarth but by Friends of the Earth Netherlands on behalf of a group of residents in the low lying Wadden Sea area, and although it was against the company rather than its directors, the timing and outcome of Shell’s appeal in the Dutch case are likely to be significant. Indeed, it is possible that the two pressure groups are coordinating their tactics.