Kadie Kalma & Others v 1) African Minerals Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 29 January 2018 |
| Neutral Citation | [2018] EWHC 120 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 13X05618 |
| Date | 29 January 2018 |
[2018] EWHC 120 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: 13X05618
Richard Hermer QC, Eleanor Mitchell and Chris Buttler (instructed by Leigh Day Solicitors) for the Claimants
Andrew Bershadski and Robert Cumming (instructed by DWF LLP) for the Defendants
Hearing dates: 15 th January 2018
Judgment Approved
INTRODUCTION
Tonkolili is a district in the north of Sierra Leone. It is home to the biggest iron ore deposit in Africa. The third defendant is the operator and licensee of the Tonkolili mine site. The 41 claimants all live in villages located close to the mine. It is alleged on their behalf that there were two incidents in November 2010 and April 2012 respectively in which they and other villagers were unlawfully assaulted and imprisoned by the Sierra Leonean Police (“the SLP”). Central to their claims is the controversial assertion that the defendants were both complicit and directly involved in this violence.
For reasons which call for no further particularisation, the third defendant has, over time, inherited the rights and obligations of the first and second defendants and is thus the only defendant to play an active part in this litigation. For ease of reference, therefore, where context allows, the defendants generically will henceforth be referred to simply as the defendant.
For the purpose of this judgment, it is not necessary to descend into detail concerning the incidents relied upon. Short summaries will suffice.
The 2010 incident arose out of a protest staged by the villagers which was directed against the defendant. They were objecting to the clearing of farmland to facilitate the mining operations. It is alleged that the SLP responded to the protest with extreme violence which the defendant both encouraged and participated in.
The 2012 incident arose out of strike organised by employees of the defendant to protest about their treatment, pay and conditions. It is alleged that over a period of two days the SLP responded once more with extreme violence upon the instructions and with the assistance of the defendant.
The claimants have brought claims for compensation against the defendant arising out of injuries, loss and damage alleged to have been sustained in the course of these two incidents. The trial is listed to start in a little over a week's time.
The procedural history of this litigation has been beset with complications, delay and mutual recrimination. Even at this late stage, there remain important matters to be resolved. One such issue forms the subject matter of this judgment. It relates to an application that a number of the claimants' witnesses should be provided with a degree of anonymity to mitigate the risk or fear that, if identified, they would face reprisals. There are a total of six such individuals whose alleged anxieties fall to be considered. A witness statement from each of them has been served from which such details as could lead to their identification have been redacted.
The defendant contends that none of the six witnesses should be afforded anonymity. In response, the claimants accept that unredacted statements should be served but argue that only a limited number of named individuals should be permitted to see these statements and that these individuals should be bound by an undertaking not to disclose the details relevant to identification to others. Those with access to the unredacted statements would be said to be members of what has come to be described in other cases as a “confidentiality club”.
THE LAW
CPR 39.2 (4) provides:
“(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”
In Yalland v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin), the Divisional Court held:
“23 Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests. The starting point must be that in a Parliamentary democracy subject to the rule of law, a person who wishes to bring a public law challenge to the conduct of the Government on the ground that it is unlawful should normally be expected to do so openly and to identify himself or herself in the process.
24 Any exception to the principle of open justice will have to be shown to be strictly necessary in order to protect the interests of the administration of justice. The burden of establishing any derogation from the general principle rests on the party seeking it. It must be established by clear and cogent evidence.”
The strength of any given claim to anonymity will, however, depend in part upon the status within the litigation of the individual whose interests are under consideration. As Lord Woolf observed in R v Legal Aid Board [1998] 3 W.L.R. 925:
“8. A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.”
There are two distinct jurisprudential bases upon which an anonymity order can be made. One is by the application of Articles 2 and/or 3 of the European Convention on Human Rights. The other is on the grounds of the common law principle of fairness. The claimants in this case do not rely on the former and so no purpose would be served by examining its scope and application.
The nature of the common law approach was set out by the House of Lords in In re Officer L [2007] 1 W.L.R. 2135 in which Lord Carswell held:
“22 The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in para 8 of its judgment in the Widgery SoldiersCase [2002] 1 WLR 1249, an allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well-founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, Ex p A [2000] 1 WLR 1855. It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination.”
One way in which the potential unfairness to other parties to which an anonymity order might otherwise give rise can be mitigated is by the creation of a confidentiality club of the type advocated on behalf of the claimants in this case. As Hamblen J held in The Libyan Investment Authority v Societe Generale S.A. [2016] EWHC 375 (Comm):
“34 The imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise. Factors relevant to the exercise of the court's discretion are likely to include:
(1) The court's assessment of the degree and severity of the identified risk and the threat posed by the inclusion or exclusion of particular individuals within the confidentiality club…
(2) The inherent desirability of including at least one duly appointed representative of each party within a confidentiality club…
(3) The importance of the confidential information to the issues in the case …
(4) The nature of the confidential information and whether it needs to be considered by people with access to technical or expert knowledge …
(5) Practical considerations, such as the degree of disruption that will be caused if only part of a legal team is entitled to review, discuss and act upon the confidential information…”
Confidentiality clubs are most typically used in antitrust and intellectual property litigation but, as the court observed in The Libyan Investment Authority, the device can properly be deployed in other categories of case where appropriate.
THE SCOPE OF THE EVIDENCE PROPOSED TO BE GIVEN BY THE ANONYMOUS WITNESSES
There were originally eight witnesses who provided statements. Two of these however, appear no longer to be willing to co-operate. These two were...
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