Daniel Alfredo Condori Vilca & 21 Others v Xstrata Ltd and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Foskett
Judgment Date29 February 2016
Neutral Citation[2016] EWHC 389 (QB)
Date29 February 2016
Docket NumberCase No: HQ13X02561

[2016] EWHC 389 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Foskett

Case No: HQ13X02561

Between:
Daniel Alfredo Condori Vilca & 21 Others
Claimants
and
(1) Xstrata Limited
(2) Compania Minera Antapaccay S.A.
(Formerly Xstrata Tintaya S.A.)
Defendants

Charles Béar QC and Maria Roche (instructed by Leigh Day) for the Claimants

Shaheed Fatima QC (instructed by Linklaters LLP) for the Defendants

Hearing dates: 25, 26 and 29 February 2016

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Foskett

Introduction

1

On 11 December 2015 I held a Case Management ('CM') hearing in this case where issues relating, in particular, to disclosure were raised by the claimants.

2

William Davis J had held a previous CM hearing in May 2015 when the main contested issue was the question of whether the claimants should be able to rely upon an expert in mining security and public order policing. He held that they were not so entitled and gave various directions concerning the preparations for trial which he decided should be in June 2016. Contested issues of disclosure were not before him.

3

During the hearing before me in December an agreement was reached between the parties about a practical way forward in anticipation of a further hearing on 11 February. In the event, the parties were not ready on that date and I was able to offer Thursday last week as the day for a 1-day hearing starting at 10.00 am. Thursday turned into Friday and the argument continued until 1 pm on Friday.

4

I am giving this judgment (which has been prepared over the weekend) today, Monday, 29 February. I would have preferred a little longer to consider some aspects, but it seemed to me important that I should give my decision as soon as possible otherwise any further delay would cause unwelcome uncertainty. I have, therefore, done the best I can to arrive at appropriate conclusions on the contested issues, some of which involve quite technical issues concerning IT. My conclusions should not, in my view, be cited in any other case: they are intended to resolve the issues placed before me in the context of the particular circumstances of this case as they have presented themselves. As will appear, I propose to adopt a pragmatic course in relation to what I will later describe as "the control issue". Any proper consideration of the authorities referred to would have necessitated reserving the judgment for a while and that would have caused a delay which will not assist.

5

The hearing exposed the significantly different positions taken by each side on the issue of disclosure and prior to the hearing I was, frankly, deluged with witness statements and correspondence relating to the issue. All that written material on both sides was, as one might expect of the solicitors involved, of high quality and closely argued. So too were the Skeleton Arguments of Mr Charles Béar QC and Miss Maria Roche, for the claimants, and Ms Shaheed Fatima QC, for the defendants. I am grateful to Mr Béar and Ms Fatima for their helpful oral submissions which went a long way to making more digestible what, on endeavouring to pre-read for the hearing, seemed totally indigestible. Nonetheless, I have been left with a fair number of not entirely easy decisions and the material upon which those decisions are to be made is often to be found in a variety of places in the papers with which I have been supplied.

6

The hearing before me and the applications made within it are set against the background of the date currently fixed for the 15-day trial starting on or about 15 June, some 3 1/2 months away. Whether that date can be retained is one of the issues for consideration. The defendants wish to retain the trial date and say that there are reputational issues arising from the publicity that this case attracts that they wish to bring to an end as soon as possible. The claimants, if I understand their position correctly, whilst not in principle wanting the trial to be delayed, say that to achieve the proper level of disclosure to ensure adequate time to prepare for the trial and for there to be a fair trial will require the trial to be vacated.

7

I start from the position that I would not wish to vacate the trial date for all the well-established reasons. However, if I am persuaded that it would be unfair and/or unrealistic to proceed then I will have to vacate the trial date.

8

I will set out the background to the case briefly since this judgment is primarily addressed to the parties.

9

The First Defendant ('D1') and the Second Defendant ('D2') were both part of a large multinational mining group called Xstrata. Since the material events Xstrata has itself since been taken over by another group, Glencore plc ('Glencore'). That took place in May 2013.

10

A significant part of Xstrata's business was its copper mining business. This was run by a Copper Commodity Business Unit ('CCBU') reporting to the board of the parent company, D1. One of Xstrata's largest assets was the Tintaya copper mine in Espinar province, Southern Peru. Tintaya was owned and operated by D2.

11

As I understand it, the Tintaya mine has come to the end of its life as an active mine and a new copper mine at Antapaccay (some kilometres from Tintaya) has commenced mining operations. The operation in the area has been moved there which is why, for example, facilities such as the Antapaccay Fileserver are referred to in some of the material before the court.

12

It is, I understand, common ground that there can be considerable tension between members of the local community, the operators of the mine and local security forces in areas where a mine is set. Police suppression of protests occurs and again it is not unknown for that to involve considerable violence. As a result the "Voluntary Principles on Security and Human Rights", which is a set of principles designed to guide companies in maintaining the safety and security of their operations within an operating framework that encourages respect for human rights, have been adopted by many mining companies over the years including Xstrata. The principles have the backing of the United Nations.

13

There was tradition of disturbances on 21 May each year around the Tintaya mine and in May 2012 community protests started building up over the preceding weeks. D2 engaged the Peruvian National Police ('PNP') to assist in dealing with the protests and paid the PNP for its services. There was, it is alleged, some previous history of violent suppression of such a protest by the PNP. On this occasion, it is the case of the claimants that protestors were subjected to extreme violence by at least the PNP and that others may possibly have been involved. It resulted in two deaths by shooting, one case of critical spinal injury, numerous other severe injuries and, it is alleged, beatings, arbitrary detention and other abusive actions by police, in many instances within the mine compound itself.

14

Each of the 22 claimants in this action complains of actions of this nature.

15

The essential allegation is that the excessive violence was perpetrated by the police, but what lies at the heart of the dispute is whether D1 and/or D2 have a legal responsibility for those acts if the evidence establishes that the acts complained of were perpetrated.

16

Various breaches of duty, both under English and Peruvian Law are alleged, but the validity or otherwise of the legal arguments is not relevant at this stage. Mr Béar summarised the pleaded case as involving allegations that the defendants incited, procured or participated in the police violence, facilitated the unlawful actions of the police by offering logistical support, facilities and information and also bore responsibility through a breach of a duty of care owed to the protesters. There is, as might be anticipated, an issue about vicarious liability. All these allegations are firmly denied by the defendants.

17

The disclosure issues that arise relate, in general terms, to the issues thus raised. Again in very general terms, what was known, discussed and planned at a relatively senior level within D1 and D2 and between those companies and the PNP and any other security personnel before the anticipated protest would be potentially relevant, as would any documents emerging during the events themselves. Anything that represented some kind of analysis of the events that occurred thereafter could also be relevant.

18

As I have indicated, the actual protest started on 21 May 2012 and continued for a number of days thereafter – possibly about a week, maybe a little longer. On 28 May a state of emergency was declared by the Peruvian Government and one imagines that the protest will have come to an end very soon thereafter.

19

The relevant period for disclosure has been taken to be from 1 April until 31 August 2012, the start date being one that I directed on the last occasion the case was before me.

20

The defendants assert that the claimants' requests for disclosure go beyond what is necessary and proportionate for a fair trial of the issues. The claimants assert that the position taken by the defendants is unduly narrow. As I have indicated, there is a considerable divergence of view.

21

I will not extend this ruling unnecessarily by reciting the relevant provisions of CPR 31 or the relevant parts of the applicable practice directions. The potential relevance of documentation...

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3 cases
  • Daniel Alfredo Condori Vilca & 21 Others v Xstrata Ltd and Another
    • United Kingdom
    • Queen's Bench Division
    • 3 November 2016
    ...further case management conference in this case on 31 October 2016. Judgments or rulings given on previous occasions can be found at [2016] EWHC 389 (QB), [2016] EWHC 946 (QB) and [2016] EWHC 1824 2 The last of the above-mentioned rulings concerned the Claimants' application for a re-rev......
  • Vilca and Others v Xstrata Ltd and another
    • United Kingdom
    • Queen's Bench Division
    • 21 July 2016
    ...in this case. The judgment needs to be read in the light of the judgment in Vilca and 21 others v Xstrata Limited and another [2016] EWHC 389 (QB) and the Supplemental Judgment reported under the same name at [2016] EWHC 946 (QB). 2 A number of issues have been raised. Some were resolved d......
  • Daniel Alfredo Condori Vilca & 21 Others v Xstrata Ltd and Another
    • United Kingdom
    • Queen's Bench Division
    • 27 April 2016
    ...a judgment on 29 February concerning the disclosure issues raised by the parties at a hearing that had taken place the previous week: [2016] EWHC 389 (QB). I asked Counsel to agree a form of order giving effect to the decisions contained in the judgment [108]. A substantial measure of agre......

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