Andres Fernando Bravo & Others v Amerisur Resources Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWHC 122 (KB) |
| Docket Number | Case No: QB-2019-004704 |
| Court | King's Bench Division |
[2023] EWHC 122 (KB)
THE HON. Mrs Justice Steyn DBE
Case No: QB-2019-004704
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
The Amerisur plc Putumayo Group Litigation
Royal Courts of Justice
Strand, London, WC2A 2LL
Alexander Layton KC, Richard Lord KC, Alistair Mackenzie (instructed by Leigh Day) for the Claimants
Alan Maclean KC, Nicholas Sloboda, Monica Feria-Tinta (instructed by Norton Rose Fulbright) for the Defendant
Hearing dates: 11, 12, 13 and 14 July 2022
Approved Judgment
THE HON. Mrs Justice Steyn DBE
A. Introduction
The claimants, who live in remote rural communities in the Putumayo region of Colombia, seek damages from the defendant pursuant to articles 2341 and 2356 of the Colombian Civil Code (‘the Civil Code’), and in reliance on Decree 321/1999, in respect of environmental pollution caused by a spill (or spills) of crude oil on 11 June 2015. The claimants' two causes of action are pleaded under the headings (i) guardianship of a dangerous activity and (ii) negligence. It is common ground between the parties that the oil spillage was the result of deliberate acts by a terrorist organisation, FARC (an abbreviation of Fuerzas Armadas Revolucionarias de Colombia, meaning Revolutionary Armed Forces of Colombia).
The parties agree that, pursuant to articles 4 and 7 of Regulation (EC) No.864/2007 on the law applicable to non-contractual obligations (‘ Rome II’), the applicable law is the law of Colombia: §35 of the Amended Generic Particulars of Claim (‘the Amended POC’); §53 of the Amended Defence to the Generic Particulars of Claim (‘the Amended Defence’). Rome II is retained EU law following the UK's withdrawal from the European Union; and the minor amendments made by the Law Applicable to Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 are irrelevant for the purposes of this trial.
This judgment follows the trial of preliminary issues:
“1. If it is assumed that the facts pleaded in the Generic Particulars of Claim are true, would the claims be time-barred pursuant to Article 47 of Law 472 of 1998? [‘ Preliminary Issue 1’]
2. Are the legal principles averred at paragraphs 56 to 61 of the Generic Defence correct as a matter of Colombian law and if so, does this preclude the Claimant's claims under Articles 2356 or 2341 of the Colombian Civil Code? [‘ Preliminary Issue 2’]”
The first preliminary issue is framed by reference to §§63–66 of the Amended Defence, to which the claimants have responded in §§2–7 of their Reply. In short, the defendant contends that the two year limitation period ( caducidad) provided by article 47 of Law 472 of 1998 (‘Law 472’), which applies to Colombian group actions, applies to these claims. If that is so, the last date to bring these claims would have been 11 June 2017, and so the claims are time-barred. Whereas the claimants contend the applicable limitation period ( prescripción) is the ten year period prescribed by article 2356 of the Civil Code.
In support of their position, the claimants rely on two points of English law and one of Colombian law. First, they contend that article 47 of Law 472 is a procedural provision within the meaning of article 1(3) of Rome II, and therefore it falls outside the scope of Rome II (‘ the Rome II issue’). Secondly, they refute the defendant's contention that this action should be treated as a group action under Law 472 (‘ characterisation of the claim/should this English action be treated as a Colombian group action?’). Thirdly, even if they are wrong on both those points, they submit that application of the time limit in article 47 of Law 472 would be inconsistent with English public policy, and so the court should refuse to apply it pursuant to article 26 of Rome II (‘ the public policy issue’).
The second preliminary issue is (expressly) framed by reference to §§56–61 of the Amended Defence. The two experts in Colombian law instructed by the parties agree that the principles of Colombian law averred in those paragraphs are correct, and so it is agreed that the answer to the first question within Preliminary Issue 2 is ‘yes’. However, the answer to the second question within Preliminary Issue 2, whether those principles preclude the claims, remains in dispute.
In the agreed translations from Spanish of the relevant articles of Colombian law, the translators have rendered both caducidad and prescripción as “ limitation period”. For clarity, and to avoid pre-judging the issue in circumstances where the claimants contend the time limit in article 47 of Law 472 is not a limitation period within the meaning of article 15(h) of Rome II, I shall use the Spanish terms caducidad and prescripción.
B. Brief History of the Proceedings
The claim was issued on 30 December 2019, and served on the defendant on 7 January 2020. In the original claim form, 15 claimants were named. The brief details of claim stated:
“The Claimants are farmers in the departamento of Putamayo in the Republic of Colombia, who have suffered both economic and non-economic damage caused by environmental contamination and pollution caused by the Defendant, primarily (though not exclusively) in the form of contamination of watercourses, wetlands and soils by wastes and residues from the Defendant's oil exploration and oil extraction activities, and in some cases caused by the spillage of crude oil from tanker trucks for which the Claimants contend that the Defendant is legally responsible. …”
Also on 30 December 2019, the claimants issued an application seeking a worldwide freezing injunction. That application was supported by the first affidavit of Mr Richard Meeran of Leigh Day, the claimants' solicitor, dated 6 January 2020, which described their claim as being for damages for both economic losses and non-economic damages caused by the defendant's oil exploration and exploitation activities. He stated that, to date, his firm had instructions to issue the claim and application from 15 people living in the affected communities in Putumayo (described as the communities of La Alea, Bajo Mansoya, Sevilla, La Rosa, Zamora, Chufiya and Belen), but he anticipated based on the number of families and individuals living in the affected communities that the likely number of claimants would in due course be about 500 people.
The claimants' case first came before the court on 9 January 2020, by which stage Mr Meeran's evidence (given in his second affidavit, dated 9 January 2020) was that an additional 72 claimants had already instructed Leigh Day to add them to the claim. I made an interim freezing order, freezing the defendant's assets in England and Wales in the sum of £3,178,600, calculated by reference to the damages claimed by the 87 claimants/intended claimants then before the court, and their anticipated costs of the claim. At the return date before Martin Spencer J, on 19 March 2020, the freezing order was made final by consent in the sum of £4,465,000 (reflecting the fact that by then the number of claimants had increased to 270).
At the hearing on 9 January 2020, I gave the claimants permission to serve an amended claim form, to add additional claimants to the action, on or before 17 January 2020. An application was duly filed on 16 January 2020, seeking to add the 255 persons listed in Part B of the Amended Schedule to the draft Re-Amended Claim Form attached to the application as claimants.
At a further hearing on 3 February 2020, I granted the claimants permission to add the 255 intended claimants as claimants in this claim, “ the joinder of each Intended Claimant to take effect upon the filing of his or her signed written consent to be added as a party to the claim” (§1 of the Order sealed on 10 February 2020). At the same hearing, on the claimants' application dated 21 January 2020 (to which the defendant agreed), and subject to the President of the King's Bench Division's consent under CPR PD19B, para.3.3, which was given on 29 June 2020, I made a group litigation order (‘the GLO’) (§§4–6 of the Order sealed on 10 February 2020). Paragraph 6 of the GLO identifies the “ initial claimants whose claims are the subject of this order” as “ those set forth in the title to this order [i.e. the original 15 claimants] and those joined pursuant to paragraph 1 of this order [i.e. the 255 joined claimants]”. The “ GLO Issues” included issues in respect of the “ release/escape of contaminants from oil drilling sites” (subsequently referred to as “ the general pollution claims”) and of the “ 11 June 2015 tanker spill incident” (subsequently referred to as the “oil spill claims”).
In accordance with directions given in the Order sealed on 10 February 2020, thereafter the parties engaged in correspondence as if pursuant to the relevant Pre-Action Protocol.
On 15 January 2021, Senior Master Fontaine ordered the claimants to serve and file Group Particulars of Claim, including a schedule containing entries relating to each individual following the format of the table attached to the order, by 26 February 2021. The Defence was required to be served and filed by 23 April 2021, and any Reply by 21 May 2021.
On 25 February 2021, the claimants served Generic Particulars of Claim, addressing the oil spill claims, together with 140 Schedules of Information. On the same date, the claimants served three applications seeking (i) a stay of 102 general pollution claims; (ii) an extension of time for service of Particulars of Claim in respect of 34 claimants; and (iii) joinder of a further five individuals. The joinder order was granted by consent: Order of Senior Master Fontaine, 10 May 2021.
By 26 April 2021, the claimants had served Schedules of Information on behalf of a further 31...
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