Daniel Alfredo Condori Vilca and Others v Xstrata Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] EWHC 1582 (QB) |
| Docket Number | Case No: HQ13X02561 |
| Court | Queen's Bench Division |
| Date | 30 June 2017 |
[2017] EWHC 1582 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stuart-Smith
Case No: HQ13X02561
HQ14X02107
Phillippa Kaufmann QC & Kate Boakes (instructed by Leigh Day) for the Claimants
Shaheed Fatima QC & Hanif Mussa (instructed by Linklaters) for the Defendants
Hearing date: 14 June 2017
Introduction
The Claimants are 22 Peruvian nationals who claim damages for personal injuries alleged to have been sustained in the course of a protest at the Tintaya copper mine in May 2012. Two of the claims are representative actions brought on behalf of deceased relatives. The Defendants were part of the Xstrata group, which has since been taken over by Glencore. The mine was one of Xstrata's assets and was owned and operated by the Second Defendant, a company registered in Peru. The Second Defendant was an indirect subsidiary of the First Defendant, a company registered in England. It is alleged that the Second Defendant called in the Peruvian National Police to defend the mine.
For present purposes it is sufficient to note that Peruvian law applies to the claims against the Second Defendant. There is a dispute about whether English or Peruvian law applies to the claims against the First Defendant: claims are pleaded against it in English law and, in the alternative, Peruvian law. One of the issues that will arise for decision by the Court will be whether and in what circumstances the Defendants may be liable under Peruvian law for acts committed by members of the Peruvian security forces. The trial of the action is set to be heard over six weeks starting in October 2017, four months hence. The present expectation is that I will be the trial judge.
It has long been understood as inevitable that the Court will require the assistance of experts in the field of Peruvian law at trial. As set out in more detail later, the Court has made orders to that end. Also, as set out in more detail later, the expert who was instructed by the Defendants to prepare a report and appear at trial, Professor Revoredo, has withdrawn at a very late stage because of ill-health. As the time for exchange of expert evidence has now passed, the Defendants have issued an application for an extension of time to enable them to instruct a new expert.
The Claimants initially objected to the proposed extension but, having received medical evidence and a witness statement from Professor Revoredo, they accepted that the Defendants should be able to call someone else and should have the necessary extension of time to enable them to do so. But they took their stand on a submission that the court should require the disclosure of reports produced by the experts in Peruvian law who had been previously instructed by the Defendants as a condition of being allowed to call the new one. As this dispute unfolded it emerged that the Defendants had previously instructed two such experts: Professor Revoredo (who has just withdrawn) and Mr Amado (who was instructed at an earlier stage in the proceedings).
The parties were unable to agree and made their submissions at a hearing on 14 June 2017. At the end of the hearing I gave my decision, which is that the condition requested by the Claimants should not be imposed. In deference to the submissions which had been made with conspicuous skill on both sides, I reserved my reasons to be given later in writing. This judgment sets out my reasons.
The Factual Background
The orders previously made by the Court in relation to experts in Peruvian law are as follows:
i) On 17 December 2014: "The Second Defendant shall serve expert evidence (as to Peruvian law) in support of its Part 11 application by 30 January 2015";
ii) On 13 May 2015: "Each party has permission to rely on the written evidence of experts in Peruvian law (on issues of liability). The report be served by way of simultaneous exchange by 4pm on 11 January 2016";
iii) On 11 December 2015 the date for the parties to serve the written evidence of one expert each on Peruvian law was directed to be determined at a subsequent hearing;
iv) On 22 November 2016 the date for exchange of expert reports in relation to Peruvian law was extended to 5 May 2017 and directions given for reply evidence, meetings of experts and the production of joint statements;
v) On 10 May 2017 the date for exchange of reports in relation to Peruvian law was extended to 24 May 2017.
None of the orders identified the expert who was to be instructed on either side. As a matter of fact, Mr Amado was retained by the Defendants in October 2013 and provided advice to the Defendants until February 2015. At an early stage in the proceedings the Defendants pursued applications under CPR Part 24 and Part 11 but those applications were stayed, with the issues that would have been pursued in those applications now being matters that will be considered at trial. When the applications were stayed and it became apparent to the Defendants that, barring settlements, the case would proceed to trial, they chose to instruct Professor Revoredo in place of Mr Amado because she is the more eminent and experienced Peruvian jurist. Although the court had not required the identification of the experts that the parties chose to instruct, the Claimants had been told in December 2014 that Mr Amado would be the Defendants' expert for the Part 24 not Part 11 applications. They did not discover that he had been replaced until the present issue arose.
The Claimants have an expert in Peruvian law in whom they have confidence and whose report they will in due course exchange. There is no information before the court to suggest whether the Claimants have consulted more than one person who is expert in Peruvian law and I make no assumption that they have or that they have not. It would not be material to my decision either way.
It is not necessary to set out the details of how it emerged that Professor Revoredo would be unable to act. In retrospect, the evidence suggests that she was struggling to make progress on her report throughout May 2017, if not before. I accept the assurance that, had her ill-health not intervened and had she not felt that she had to resign as a result, Professor Revoredo would have been the Defendants' expert at trial. On the information provided to the Court and to the Claimants, the substitution of another expert in place of Professor Revoredo has nothing to do with expert shopping. The substitution of Professor Revoredo in place of Mr Amado was done with the intention of improving the quality and weight of the evidence that the Defendants could adduce; but there is no basis for suggesting that it involved the potentially disreputable practice of ditching an expert because he would not, for reasons good or bad, support a party's case. I accept that the loss of Professor Revoredo was involuntary for and unwelcome to the Defendants. The loss of Mr Amado, on the other hand, was voluntary; and it was welcome in the sense that the Defendants then had in Professor Revoredo an expert who they considered to be more eminent and experienced.
The Defendants' present application is formally an application for an extension of time to serve expert evidence. That is technically the correct approach as Professor Revoredo has never been identified by the Court as the expert for whom specific permission is given. However, both parties recognised that the substance of the issue lies in the question whether and if so on what terms the Defendants may instruct someone other than Professor Revoredo and use their evidence at trial.
The Applicable Principles
Ms Kaufmann QC for the Claimants submitted that the Court should only permit the instruction and calling of a replacement expert on condition that the Defendants disclose reports produced by experts previously instructed in the case. In the light of information that Professor Revoredo's report is not finished, she submitted that all documents setting out the substance of Professor Revoredo's opinion as expressed in the most recent draft of her report or elsewhere should be disclosed; and that the same should apply to work produced by Mr Amado. She asserts that, where there is an application to the court that is in substance an application to instruct a new expert in circumstances that give the court power to impose such conditions, there is a rule of law and procedure that the Court should impose conditions save in rare circumstances. She submitted that the rationale for the rule is (a) to discourage expert shopping and (b) to assist the opposing parties and the court.
The starting point in authority for Ms Kaufman's submissions is Beck v Ministry of Defence [2003] EWCA Civ 1043, [2005] 1 WLR 2206, which was a personal injury action. There was an order for the exchange of expert evidence on 10 October 2002 that did not identify the experts whose reports were to be exchanged. The Defendant's expert, Dr Goodhead, examined the Claimant and prepared a report, after which the Defendant lost confidence in him. On 10 October 2002 (i.e. the day before exchange was due) the Defendant asked the Claimant for facilities for a further examination by a different expert. When that request was refused the Defendant made an application on 11 November 2002 (i.e. out of time for exchange). The leading judgment was given by Simon Brown LJ, with whom Ward LJ agreed. Lord Phillips MR gave a concurring judgment. The critical question was whether the Court should order the disclosure of Dr Goodhead's report as a condition of the granting of permission for the Defendant to examine the Claimant...
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