Daniel Alfredo Condori Vilca and Others v (1) Xstrata Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 19 January 2018 |
| Neutral Citation | [2018] EWHC 27 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X02561 AND HQ14X02107 |
| Date | 19 January 2018 |
[2018] EWHC 27 (QB)
The Honourable Mr Justice Stuart-Smith
Case No: HQ13X02561 AND HQ14X02107
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Kate Boakes (instructed by Leigh Day) for the Claimants
Shaheed Fatima QC, Hanif Mussa, Isabel Buchanan (instructed by Linklaters LLP) for the Defendants
Hearing dates: 30 th October – 10 th November 2017
Judgment Approved
Introduction
The Claimants are Peruvian citizens. Twenty of them allege that they were injured by members of the Peruvian National Police [“the PNP”] during a protest at the Tintaya mine in Espinar, a remote Andean province of Peru. The other two Claimants bring claims arising out of the deaths of relatives at the hands of the PNP during the same protest. The protest took place between 21 and 28 May 2012. The Second Defendant was the mine operator at the material time and is a Peruvian company. The First Defendant was the Second Defendant's parent company at a number of removes: it is registered and domiciled in the United Kingdom.
After initially issuing proceedings in England in 2013 that only advanced claims under English law, the Claimants subsequently added claims under Peruvian law by successive amendments, the first of which were brought forward more than two years after 21–28 May 2012. After considerable and unexplained delay the Defendants made a late amendment to their pleadings to allege that the Claimants' claims under Peruvian law are barred by limitation: see Vilca and others v Xstrata limited and others [2017] EWHC 2096 (QB) [“the Limitation Amendment Judgment”]. On permission being given to the Defendants to amend to plead limitation, the Claimants abandoned all claims under English law.
It is now common ground that (a) the applicable law for the Claimants' claims in these proceedings is Peruvian law by virtue of the provisions of Rome II; and that (b) the relevant limitation period under Peruvian law is two years from the date on which each Claimant alleges that he or she was injured during the protest.
This state of affairs led to a direction that the expert evidence on Peruvian law should be heard, and the issue of limitation decided, during a preliminary hearing. This is the judgment of the Court on the issue of limitation after that preliminary hearing.
The judgment adopts the following course:
i) Introduction;
ii) The Experts in Peruvian Law;
iii) The Sources of Peruvian Law;
iv) The Relevant Provisions of Peruvian Law;
v) The Relevant Factual Background;
vi) Summary of the Parties' Positions on Limitation;
vii) Issue 1: to what extent did the issuing of the Claim Form and/or the original Particulars of Claim interrupt the period of prescription under Peruvian Law?
viii) Issue 2: did the interruption of the period of prescription by the Claim Form and/or the original Particulars of Claim have the effect that any or all of the claims under Peruvian Law that were subsequently advanced by amendment were brought within the time permitted by the Peruvian Law of limitation?
ix) Issue 3: what is the significance of CPR 17.4?
x) Issue 4: if some or all of the claims under Peruvian Law were brought after the limitation period applicable to those claims had expired and would otherwise be barred by limitation, are the Defendants prevented from relying on limitation by waiver?
xi) Conclusions
For the reasons set out below, I hold that the Claimants' claims under Peruvian law are barred by limitation. There has been no tacit waiver by the Defendants that prevents them relying on limitation as a defence to the Peruvian law claims.
The Experts in Peruvian Law
The parties called experienced and distinguished experts on Peruvian law. The Claimants called Professor Fernández; the Defendants called Professor Bullard. The emphasis of their past experience differs. Professor Fernández is an experienced litigator; Professor Bullard's main (but not sole) practical experience of contentious dispute resolution lies in arbitration, where he is primarily an experienced arbitrator. Professor Fernández has written more extensively on extra-contractual liability than Professor Bullard. Each has been cited by the Peruvian Courts on questions relating to Peruvian procedure, apparently with approval. Professor Fernández has the distinction of having been asked to act as amicus curiae to the Civil Chambers of the Peruvian Supreme Court in a case in which a binding precedent was set. This is a signal honour, which Professor Bullard cannot match. Professor Fernández is also the President of the Reform Commission that is reviewing the Peruvian Code with a view to its reformulation. His CV is, on any view, extremely distinguished.
If the Court's task was merely to determine which expert had the longer or more distinguished CV, Professor Fernández would win the competition. However, that is not the Court's task. Having heard each expert give evidence over days, I am not persuaded that the relative distinction of their CVs entitles me routinely to disregard or give precedence to the evidence of either expert. Each expressed firmly held views with great conviction — often at very great length — which allowed the internal logic of their answers to be seen and tested by rigorous cross-examination. My ultimate conclusion was that each was expert in the relevant fields of Peruvian law. In addition, as appears below, Peruvian law and doctrine do not provide clear, unequivocal and authoritative answers to the issues I have to decide. That being so, I have attempted to form a view on the merits of the experts' evidence on the issues I have to decide based upon the terms of the various relevant provisions of Peruvian law, available doctrine, and the inherent quality of the evidence they gave. In doing so I have taken into account their respective backgrounds and experiences, as disclosed by their CVs, and also that the issues covered in this judgment are only a fraction of the issues covered during the hearing. Although not required (and not in a position) to make findings on the other issues of Peruvian law that were covered during the present hearing, I have taken full account of the high quality of their evidence as a whole. I have formed the view that neither expert is always right in his opinions on Peruvian law.
The Sources of Peruvian law
The Peruvian legal system is a civil law system and is constructed on the basis of general and abstract legislation by the legislature, which is interpreted in the light of relevant academic authorities (known as “doctrine”) and, to a lesser extent, on the basis of reported cases.
There are two differences that materially affect the English Court's approach to Peruvian judicial decisions when compared with its approach to decided cases in a common law tradition. First, apart from limited exceptions to which I refer below, Peruvian law does not have a system of binding authority or precedent. Second, and perhaps related to the first, Peruvian judicial decisions tend to concentrate upon applying the law to the specific case without providing the same degree of written analysis of either fact or law as typically applies in decisions of the higher Courts in England and Wales. An English Court trying to derive assistance from Peruvian judicial decisions must take these differences into account, as well as the conceptual and linguistic differences that inevitably exist between cases decided in different languages and under a common law or civil law system respectively. This is not a criticism of the decisions themselves; it is merely a recognition of the different approaches adopted by the Courts of Peru on the one hand and of England and Wales on the other.
There are two exceptions to the general rule that decisions of the Peruvian Courts do not give rise to binding precedent. The first is when the Supreme Court expressly indicates that it is issuing a judgment that constitutes or amends a binding precedent. The second is that the Constitutional Tribunal (which is an autonomous body that is distinct from the Judicial Branch) may issue precedents on matters of a constitutional nature which are expressly designated as such. So far as I am aware, none of the cases to which I refer in this judgment fall within either of these exceptions.
Given the lack of precedent, Peruvian Courts often issue contradictory rulings on similar matters, which generates legal uncertainty. In Peru, as in other civil law systems, the absence of precedent is balanced (to some extent) by reliance on doctrine, typically in the form of the writing of distinguished jurists. Doctrine is not a direct source of law; but it is a legitimate source of guidance for Judges in Peru as they make their decisions. As shown by the evidence of both experts in the case, it may be legitimate not merely to have regard to the writings of Peruvian jurists but also to take into account doctrine from other civil law jurisdictions. The writings of renowned jurists play an important role in the development of Peruvian law but do not necessarily speak with one voice. For that reason they do not always provide guidance of such clarity or unanimity as to allow certainty about precisely what the current state of the law of Peru may be or where it may be going. I accept the evidence of Professor Bullard that doctrine will have additional weight if it is unanimous or if there is a clear majority rather than if it is divided. Where there is a discrepancy of view within doctrine, the interpreting Judge must follow the criteria (by which he means arguments and justifications) that the Judge considers most...
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