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

JurisdictionEngland & Wales
JudgeMr Justice Foskett
Judgment Date03 November 2016
Neutral Citation[2016] EWHC 2757 (QB)
Docket NumberCase No: TLQ/15/0190
CourtQueen's Bench Division
Date03 November 2016

[2016] EWHC 2757 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon Mr Justice Foskett

Case No: TLQ/15/0190

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

Harry Steinberg QC and Kate Boakes (instructed by Leigh Day) for the Claimants

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

Hearing date: 31 October 2016

RULING

If this 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

I held a 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 (QB).

2

The last of the above-mentioned rulings concerned the Claimants' application for a re-review of the disclosure exercise. That aspect has been dealt with satisfactorily in accordance with that ruling. However, a further issue (i.e. in addition to the matter dealt with in my last ruling) has been raised about whether the disclosure exercise conducted by the Defendants' solicitors has been carried out properly. Some questions are to be raised by the Claimants' solicitors which will be answered by the Defendants' solicitors shortly. The Claimants have reserved their position as to whether they might make a further application concerning disclosure. I will say nothing more about this issue at present and I propose to proceed, for present purposes, on the basis that there will be no disruption of the timetable towards the trial referred to below.

The trial

3

So far as the trial is concerned, the parties are agreed that it should take place in 2017, the Claimants expressing a preference for a trial window from 30 June to 31 July, the time estimate being 15 days. The Defendants have expressed a preference for the Michaelmas term.

4

Purely from the point of view of the efficient deployment of judicial resources, my preference, as Judge in Charge of the Queen's Bench Civil List, is not to list a substantial trial of the nature involved here (involving, as it may do, witnesses from Peru giving evidence via video link) during effectively the last few weeks of the Summer Term. It is better from the court's point of view to list such a trial in the Michaelmas Term. I have indicated that to the parties and they should liaise with each other (and with the QB Listing Office) over a suitable window for the trial in the Michaelmas Term.

5

There are one or two relatively minor, timing matters that will probably fall into place now that the period when the trial will take place has been determined. I will invite the parties to try to agree a timetable in the light of this ruling. If it cannot be agreed I will have to decide on the issues.

Expert evidence

6

The most significant issue to be considered at the present stage is whether the Claimants should have permission to rely upon the evidence of Mr Bennett Freeman as an expert witness in relation to the Voluntary Principles on Security and Human Rights ('the VPs').

7

In a letter to Leigh Day dated 21 October 2016, Mr Freeman describes his personal background in the following terms:

"Over the last 15-plus years I have worked at the intersection of governments, international institutions, multinational companies, investors and NGOs to improve corporate conduct and to promote human rights and sustainable development.

As Deputy Assistant Secretary, Democracy, Human Rights and Labor at the US Department of State between April 1999 and January 2001, I was instrumental in the State Department/British Foreign Office initiative that forged the [VPs].

While I have not had a formal role with the [VPs] since early 2001, I published a number of articles and case studies focusing on their origins and development, and consulted with several major companies on their implementation over the first five years after their launch.

Over the last 10 years, I have provided informal counsel to governments, companies and NGOs involved in the process and continue to follow the process closely. I am currently a member of the boards of several NGOs in the human rights field, including Chair of the Advisory Board of Global Witness."

8

There is not, I apprehend, any dispute about the approach to the question of whether reliance can be placed on Mr Freeman's evidence as expert evidence. The starting point is CPR 35.1 which provides that "[expert] evidence shall be restricted to that which is reasonably required to resolve the proceedings". CPR 35.4(1) provides that "no party may call an expert or put in evidence an expert's report without the Court's permission." CPR 35.4(2)(a) requires a party who seeks permission to rely upon an expert witness to identify "the field in which expert evidence is required and the issues which the expert evidence will address". I will return below to the way these matters are addressed by the court.

9

Mr Harry Steinberg QC, standing in for Mr Charles Béar QC on this occasion, submitted that the evidence that could be adduced through Mr Freeman would be "relevant to the Court's consideration of what amounted to good practice – in relation to security and human rights – in the extractive industries at the time and the extent to which this was shaped or reflected by the VPs." The contention is that –

"… these matters need to be considered in context; i.e. what was the purpose and effect of the VPs? How where they generally understood by signatories and others in the industry? Such questions are directly relevant to the standard of care required of the Defendants under both UK law and Peruvian law."

10

That summation does reflect broadly the way in which the VPs are relied upon in the proposed Re-Amended Particulars of Claim and the assertion is made in that pleading that the alleged failure of the Second Defendant to "restrain or influence the PNP against the use of excessive force and the infliction of serious violations of human rights" represented a falling below the standard of care set by the VPs.

11

In his letter to Leigh Day Mr Freeman has identified five areas where he says he could assist the court:

• The origins and rationale of the [VPs], and subsequent developments;

• The status of the [VPs] as a global standard in the oil and mining industry;

• Human Rights Impact Assessments ("HRIAs"): purpose, industry and good practice as at 2012;

• Post-2000 examples of instances where human rights violations were perpetrated against protesters by public security forces whilst protecting mines owned by companies that had not adopted the [VPs]; and

• Evidence on what steps could reasonably have been taken by Xstrata under the [VPs], consistently with good industry practice to diminish the risk of harm being caused to the protestors by the Peruvian police in May 2012.

12

Mr Steinberg recognised (as indeed is tolerably plain from a reading of the VPs) that the principles established by the VPs are set at "a high level" and simply offer broad operational guidance to corporate entities involved in mining operations. He said that the Defendants' submissions suggest that the VPs represent "aspirations" rather than, as he contends, "industry standards". Their precise status will be a matter for the trial judge, but the description I gave them in my first judgment (at [12]) is sufficient for present purposes:

"… the [VPs] … 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

Mr Steinberg submits that Mr Freeman's evidence could assist the court in determining the purpose and effect of the VPs and in determining what "could and should" have been done to secure compliance with them in this instance. He emphasises Mr Freeman's role as one of the principal architects of the VPs and his "key role" in developing standards.

14

Ms Fatima QC contends, however, that the proposed evidence falls at the first hurdle in that it cannot properly be characterised as "expert" evidence. She does not, of course, challenge Mr Freeman's overall experience and doubtless distinguished service in the formulation of the VPs, but submits that, on proper analysis, it does not meet the accepted description of expert evidence. Her starting point is what Evans Lombe J said in Barings Plc v Coopers & Lybrand [2001] PNLR 22, where an application was made by one party to strike out parts of certain...

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