(1) Hong Cassley and Others v GMP Securities Europe LLP (1st Defendant) Sundance Resources Ltd (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWHC 722 (QB) |
| Docket Number | Case No: TLQ/14/0468 |
| Court | Queen's Bench Division |
| Date | 31 March 2015 |
[2015] EWHC 722 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Rolls Building,
Fetter Lane, London, EC4A 1NL
The Honourable Mr. Justice Coulson
Case No: TLQ/14/0468
Mr Matthew Reeve (instructed by Stewarts Law LLP) for the Claimants
Mr John Ross QC and Mr Kiril Waite (instructed by Berrymans Lace Mawer LLP) for the 1 st Defendant
Mr A. John Williams (instructed by Norton Rose Fulbright) for the 2 nd Defendant
Hearing dates: 3, 4, 5, 9, 10, 11, 12, 18, and 19 February 2015
INTRODUCTION
At about 9:14 on the morning of Saturday 19 June 2010, a CASA C-212–100 Aviocar aircraft crashed into a hillside in a remote area of dense jungle in the northwest corner of the Republic of Congo. All 11 people on board were killed. They included 6 members of the Board of Directors of the second defendant, Sundance Resources Limited ("Sundance"), who had chartered the plane from Aero-Service, a Congolese charter flight company. Also killed was Mr James Cassley, a corporate financier employed by GMP Securities Europe LLP ("GMP"), together with Mr Talbot's PA; Mr Jeff Duff of Dynamiq, Sundance's logistics contractors; and the two pilots.
Sundance is an Australian mining company which had acquired the rights to mine a number of iron ore deposits in the area, including large, linked deposits at Mbalam in Cameroon and Nabeba in the Congo. Mr Cassley was there to inspect that site because GMP hoped to win the instruction to act as Sundance's representatives in the raising of finance for this major mining project.
The aircraft was flying from Yaoundé in Cameroon to an airstrip at Yangadou, over the border in the Congo, and the closest landing strip to the Mbalam/Nabeba site. It appears that the day before the flight, the Sundance directors decided that they would take the opportunity of making a relatively small detour so that they could fly over another large mine in the area near Avima, operated by a rival company (Core Mining), the rights to which Sundance were interested in acquiring. The Avima mine was in the northeast corner of Gabon. The maps and charts show that the Core Mining mine was located just beyond the Avima ridge, a continuous line of hills rising about 250 metres from the floor of the jungle and running west/ east. On the morning of 19 June 2010, the area of the Avima ridge was covered in low cloud. The pilots were apparently descending and endeavouring to find the bottom of the cloud base when they flew straight into the ridge itself. This is known as a Controlled Flight Into Terrain ("CFIT").
The claimants are Mr Cassley's dependants: his widow, Hong Cassley, and his parents, Mona and Hector. Originally, they made a claim against Aero-Service, whose insurers have now paid out to them about 600,000 Euros. They also brought proceedings in the USA against the manufacturers of the GPS system on board the accident flight, although it appears that that claim has now been abandoned.
This claim is brought against Mr Cassley's employers, GMP, for breach of the duty of care owed to him. Although, as noted below, GMP admit the existence of a duty, they deny liability and, in their original defence (and as they maintained at trial) they argue that they were entitled to rely entirely on Sundance, who made all the detailed arrangements in respect of the trip as a whole, and the flight to Yaoundé in particular 1. The claimants say that, because of GMP's case that they were entitled to rely on Sundance, and that it was Sundance who assumed any relevant responsibilities to Mr Cassley, they had no option but to join Sundance as second defendant. Sundance
deny the existence of any duty of care and, if they are wrong about that, deny any breach. In addition, both defendants raise a variety of points on causation.Pursuant to the order of Master Eastman dated 17.3.14, this trial, and therefore this Judgment, is concerned only with issues of liability (including causation). It should also be noted that, although there were contribution proceedings between GMP and Sundance, those proceedings have been resolved and I am not required to rule on them.
The Judgment is structured in this way. In Section 2 I summarise the evidence relating to Mr Cassley. In Section 3 I deal with Sundance and the Mbalam/Nabeba project. This includes a summary of the evidence relating to the earlier chartered flights that Sundance arranged in this region of Africa, and their previous attempts to exclude their liability if things went wrong. In Section 4 I deal with GMP, and in Section 5 I set out the arrangements for the visit to Mbalam/Nabeba in June 2010. This also considers the evidence relating to GMP's reaction to Sundance's attempts to exclude their liability for Mr Cassley in the event of an accident, and the late changes to the original flight arrangements. Section 6 of the Judgment is concerned with the flight on 19 June 2010. Section 7 is concerned with Aero-Service, the owners and operators of the aircraft that crashed, and goes on to address the causes of that crash.
At Section 8 I address standards and statistics. At Section 9 I summarise the issues between the parties. At Section 10 I outline some of the difficulties with the expert evidence. Thereafter, at Sections 11 and 12 below I deal, respectively, with the case against GMP and the case against Sundance, by reference to the conventional sub-headings of Law, Duty, Breach and Causation. Before embarking on any of that, I ought to express my thanks to counsel for the efficient way with which they dealt with this trial, notwithstanding the practical difficulties created by the unwieldy bundling arrangements, and to the claimants, whose dignity and fortitude throughout a distressing trial was of the highest order.
JAMES CASSLEY
James was the only child of Mona and Hector Cassley, the second and third claimants. He was 30 when he died. He took a BSc in Geology from Queen's University Belfast and then moved to London to pursue a career in finance. He worked first as a corporate finance executive and then in the resources sector, specifically mining. He was certified as a corporate financier by the Securities and Investment Institute. From 21 April 2009 he was employed by GMP as a corporate finance executive. He successfully completed his probationary period on 20 January 2010.
James met Hong in 2005 in the ticket queue at Wimbledon. The relationship blossomed and they married in 2007. At the time of his death they were trying for children.
Although by June 2010 he had only just completed his probationary period, it was clear that James was doing very well at GMP. The finance officer indicated that, had he continued as he was doing, he would have been offered a junior partnership with GMP within 2 to 3 years. GMP marked James death in their 2010 Accounts in this way:
"James was a very intelligent pleasant person and a joy to be around – one of a kind. He loved to travel and always did so extensively both in his personal life and for work. With an amiable personality and disposition, James was always approachable and always had time for people willing to help in any way. His infectious humour and energetic spirit will be greatly missed but not forgotten."
Mr Cassley always knew that travelling was an integral part of his work for GMP. That was because GMP were primarily involved in raising finance for mining and related start-up projects. A site visit would almost always be required as part of the necessary 'due diligence' process. It is therefore unsurprising that his widow, Hong, said at paragraph 10 of her statement that, as the most senior person in GMP's mining team in London, he travelled a lot. In the year of his death he had already travelled several times to Africa. Furthermore, he knew that these charter flights were somewhat different to routine air travel. At paragraph 11 of her statement, Hong recalls him telling her about one charter flight that he had taken in Africa on an old World War 2 Russian aircraft which "shook like it was coming apart".
Hong expressed her concerns to Mr Cassley about this and asked whether it was safe to fly in "a little aircraft like that". Mr Cassley had said that the aircraft had landed, 'so it was fine'. It is therefore clear that he knew that there were some risks attached to his job and the flying that it entailed to remote locations. On the other hand, there is nothing to suggest that he ever knew of, let alone accepted, any unnecessary risks when undertaking these flights.
SUNDANCE AND THE MBALAM/NABEBA PROJECT
Caveat re Sundance Documents/Evidence
This Section (and the next Sections of this Judgment) are taken primarily from the documents, principally emails which passed between the relevant parties in the first six months of 2010. I consider that these contemporaneous documents are the best source of information as to how the relevant events unfolded, particularly given the sad fact that so many of the major players (not just Mr Cassley, but Mr Lewis and Mr Carr-Gregg of Sundance and Mr Duff of Dynamiq) lost their lives in the accident.
In his closing submissions, Mr Williams issued the court with a polite warning, to the effect that, because of the difficulties created for Sundance by the accident, and the loss of so many key personnel, the court should not necessarily assume that the available documentation was 100% complete. In relation to one or two potentially important factual matters, he asked the court to infer some things that were not necessarily borne out by the documentation.
I deal in these narrative Sections with any particular...
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