Onder 6.1 Gerechtshof Den Haag 18 december 2015

Milieudefensie et al. demand inspection of the documents referred to on page 72, items a through o of its statement of appeal concerning the dismissal of the motion to produce documents under art. 843(a) CCP. In part these are documents with which Milieudefensie et al. intend to demonstrate that insufficient maintenance is the cause of the spill rather than sabotage, as the District Court found. Milieudefensie et al. consider clarity about the cause important, because under art. 11(5)(c) OPA SPDC is (strictly) liable if the spill is the result of corrosion/insufficient maintenance, whereas sabotage as cause of the spill constitutes a discharge of liabilities pursuant to that provision, although it is down to SPDC to prove the correctness of that defence. The question which standard of evidence should be applied still seems to be in dispute: ‘preponderance or weight of evidence’ or ‘beyond reasonable doubt’ (cf. Shell Petroleum Development Company Nigeria Limited v. Edamkue & Ors. , referred to above, where it presents the opinion of I.F. Ogbuagu, J.S.C. ‘[..] it is now firmly established in a line of decided authorities by this court firstly, that civil cases are proved by preponderance or weight of evidence’ and that of N. Tobi, J.S.C.: ‘The allegation that the spillage was caused by hostile act of some people is an allegation of a criminal act which needs to be proved beyond reasonable doubt.’). The court in first instance -at first provisionally (in the contested interim judgment) and subsequently finally (in the final judgment)- found that it is sufficiently established that sabotage was the cause of the spill. This opinion is in part decisive for its dismissal of the procedural issue pursuant to art. 843(a) CCP. Milieudefensie et al., who do not agree with the dismissal, therefore complain about this opinion (ground 1 of the appeal).

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