Daniel Alfredo Condori Vilca & Others v Xstrata Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC 2096 (QB) |
| Docket Number | Case No: HQ13X02561 & HQ14X02107 |
| Court | Queen's Bench Division |
| Date | 11 August 2017 |
[2017] EWHC 2096 (QB)
Mr Justice Stuart-Smith
Case No: HQ13X02561 & HQ14X02107
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL
Ms Phillipa Kaufmann QC and Ms Kate Boakes (instructed by Leigh Day) for the Claimant
Ms Shaheed Fatima QC and Ms Isabel Buchanan (instructed by Linklaters LLP) for the Defendants
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.
Introduction
This is the Defendants' application to amend their Defence to plead a limitation defence to the claims being brought under Peruvian law by the Claimants. The claims arise out of a protest that took place at or near the Tintaya mine in Peru in 2012. The First Defendant is a company registered in England and Wales. The Second Defendant is a Peruvian company which operated the mine at the relevant time. The Second Defendant is an indirect subsidiary of the First Defendant.
The factual basis of most of the claims is an allegation that unidentified officers of the Peruvian National Police ["the PNP"] or other public and private security forces mistreated the Claimants, causing them to suffer personal injuries and consequential losses. Two of the claims are brought by relatives of deceased persons who are alleged to have been shot and killed in the course of the incident.
In the sections below, I trace:
i) The chronology of the development of the pleaded cases on both sides;
ii) The principles to be applied when dealing with contested applications to amend;
iii) The parties' submissions;
iv) Striking the balance; and
v) My conclusions.
The Development of the Pleaded Case on Both Sides
The Claim Form for twenty-one Claimants was issued on 30 April 2013. A further Claim Form was issued for one further Claimant on 22 May 2014. No distinction falls to be made because of the existence of the two Claim Forms.
The original Particulars of Claim were served on 14 August 2013. Under the heading "Causes of Action", the Claimants pleaded that:
"4.1 It is premature for the Court to determine the applicable law in respect of the liability of the Defendants. It is the Claimants' case that pursuant to section 11 and/or section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 liability in respect of risk management and auditing undertaken by the First Defendant fall to be governed by the law of England and Wales. It is averred that the appropriate juncture for the determination of the applicable law in respect of the actions of the First Defendant must await completion of disclosure, whereupon proper assessment can be made of the corporate structure of the First Defendant, its control and relevant actions.
4.2 To the extent that Peruvian law applies, the Claimants' case is that Peruvian law is to be presumed to be identical to that of England & Wales unless and until the Defendants prove it otherwise."
Consistently with the Claimants' assertion that Peruvian law should be presumed to be identical to that of England and Wales unless the Defendants proved otherwise, the Particulars of Claim went on to allege causes of action under the headings of vicarious liability, common design to injure and/or commit trespass to and/or unlawfully detain the Claimants, conspiracy to injure, false imprisonment, and negligence. The claim in negligence was particularised in 18 respects ["the Original Allegations"], which provided a wide-ranging sheaf of allegations covering the Defendants' alleged failure to identify or plan for the risks that eventuated and, by failures of planning, control and supervision, failing to control or supervise the response to the protest.
The Defence of the First Defendant was served on 9 December 2013. It took issue with the Claimants' approach to the applicable law and correctly averred that it was to be determined by reference to the Rome II Regulation.
By April 2015 the Claimants had reassessed the legal position. They served Amended Particulars of Claim dated 9 April 2015 which differed materially from the original Particulars of Claim. In particular:
i) The Claimants now accepted and pleaded that the law applicable to the Defendants' non-contractual obligations is to be determined by the Rome II Regulation. In consequence they now pleaded that:
a) The Claimants' primary case is that English law applies to the First Defendant's non-contractual obligations arising from the pleaded torts; but that if English law does not apply to its non-contractual obligations arising from the pleaded torts, then Peruvian law applies and causes of action as pleaded arose against the First Defendant in any case;
b) Peruvian law applies to the Second Defendant's non-contractual obligations arising from the pleaded torts;
ii) The Original Allegations of negligence were retained (as they still are) as the formulation of the Claimants' primary case against the First Defendant under English law;
iii) New causes of action were pleaded at [4.6]ff against the First Defendant (in the alternative to the case under English law) and the Second Defendant under Peruvian law ["the 2015 Peruvian law allegations"]:
a) The pleading of those causes of action started by identifying five articles of the Peruvian Civil Code of 1984 ["the PCC"], which I set out at [9] below;
b) The pleading then identified acts committed against the Claimants by public and/or private security forces, in respect of which they (the security forces) were alleged to be liable to the Claimants pursuant to Articles 1969 and/or 1970 of the PCC;
c) The pleading then set out a set of allegations closely modelled on the Original Allegations which were alleged to give rise to direct liability on the part of each of the Defendants to the Claimants pursuant to Article 1969 of the PCC;
d) The pleading then alleged direct liability on the part of both Defendants to the Claimants pursuant to Article 1978 of the PCC for aiding, abetting and inciting the behaviour of the security forces;
e) The pleading then alleged direct liability on the part of both Defendants to the Claimants under Article 1970 of the PCC on the basis that (i) their organisation, direction or facilitation of the security operation and (ii) the security operation itself amounted to a risky or dangerous activity and caused harm to the Claimants;
f) The pleading went on to allege liability on the part of both Defendants to the Claimants pursuant to Article 1981 of the PCC for the tortious acts of the security services because of their control and supervision of the acts that the security services committed;
g) Finally, the pleading then alleged that, pursuant to Article 1981 of the PCC, the First Defendant is indirectly liable as principal for the acts of the Second Defendant on the basis of the First Defendant's control of the organisation including the Second Defendant.
The Articles of the PCC cited by the Claimants were:
"Article 1969
He who through negligence or wilful misconduct causes harm to another is required to compensate it. The defence for lack of negligence or wilful misconduct is in the hands of the perpetrator.
Article 1970
He who through risky or dangerous goods, or through the exercise of a risky or dangerous activity, causes harm to another, is required to make good such harm.
Article 1978
He who incites or aids and abets in causing harm is also liable for it. The extent of the liability shall be determined by the judge in accordance with the circumstances.
Article 1981
He who has others under his orders is held liable for the harm caused by the latter if the harm is carried out in the exercise of the duties or fulfilment of the respective service. The direct perpetrator and the indirect perpetrator are held jointly and severally liable.
Article 1983
If several people are liable for the harm, they shall be held jointly and severally liable. However, he who paid the totality of the compensation may then repeat the claim against the others, with the judge setting the proportion according to the seriousness of the fault of each of the participants. When it is not possible to discern the extent of each participant's liability, the share shall be calculated equally."
On 1 May 2015 the Defendants served their Re-amended Defence, which responded to the Amended Particulars of Claim. It admitted and averred that the relevant legal framework is contained in the Rome II Regulation; it denied that the Defendants have any responsibility for the alleged actions of the PNP; and, without prejudice to the generality of that denial, it pleaded a detailed response to the 2015 Peruvian law allegations. The Re-amended Defence did not plead limitation as a defence to the 2015 Peruvian law allegations.
In November 2016 the Claimants served Re-amended Particulars of Claim. This did not alter the fundamental thrust of the claims pleaded in the Amended Particulars of Claim; but it provided some further particularisation, re-numbering and tidying up.
The Defendants responded with a Re-re-amended Defence dated 13 January 2017. The Defendants took the opportunity to refine and amplify the pleading of their case in response to the section of the Claimants' pleading that dealt with Causes of Action. They did not plead a limitation defence to the 2015 Peruvian law allegations as now pleaded.
In April 2017 the Claimants informed the Defendants that they wished to amend their Particulars of Claim again. There were four proposed substantive amendments ["the 2017 Amendments"]:
i) Where previously it had been...
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