Kadie Kalma & Others v African Minerals Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3506 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 13X05618 |
| Date | 19 December 2018 |
[2018] EWHC 3506 (QB)
THE HON. Mr Justice Turner
Case No: 13X05618
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer QC, Chris Buttler and Eleanor Mitchell (instructed by Leigh Day Solicitors) for the Claimants
Neil Moody QC, Andrew Bershadski and Robert Cumming (instructed by DWF LLP) for the Defendants
Hearing dates: 29, 30, 31 January; 1, 2, 5–9, 12–16, 19–23, 26, 27, 28 February; 1, 2, 5–9, 12, 14 March 2018
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.
THE HON. Mr Justice Turner
TABLE OF CONTENTS
| INTRODUCTION | 4 |
| THE LAW | 5 |
| THE BASES OF CLAIM | 6 |
| EMPLOYEE VICARIOUS LIABILITY | 6 |
| The conduct criterion | 7 |
| NON-EMPLOYEE VICARIOUS LIABILITY | 8 |
| The relationship criterion | 8 |
| ACCESSORY LIABILITY | 9 |
| PROCUREMENT LIABILITY | 12 |
| MALICIOUS PROSECUTION | 14 |
| NEGLIGENCE | 14 |
| BREACH OF A NON-DELEGABLE DUTY | 15 |
| KEEPING THINGS IN PROPORTION | 18 |
| FACT-FINDING DIFFICULTIES | 19 |
| MISCELLANEOUS POINTS | 20 |
| Evidence gathering | 20 |
| Disclosure | 21 |
| Defendant's failure to call witnesses | 22 |
| The defendant's failure to give a coherent account of what its key operatives were doing during the incidents | 23 |
| Particulars of the defendant's support for the police | 23 |
| Cultural differences | 24 |
| Corporate social responsibility | 24 |
| Fact-finding | 24 |
| THE CONTEXT | 24 |
| Sierra Leone | 24 |
| Iron | 25 |
| Geography | 25 |
| THE 2010 INCIDENT | 27 |
| THE GATHERING STORM | 27 |
| KEMEDUGU | 30 |
| CHAOS | 32 |
| The roadblock | 32 |
| After the release of the expatriates | 33 |
| The arrests | 34 |
| Detention at the mine | 37 |
| Further unrest | 38 |
| THE AFTERMATH | 39 |
| THE DEFENDANT'S ROLE IN THE PROSECUTION | 39 |
| CENTRAL FINDINGS WITH RESPECT TO THE 2010 INCIDENT | 41 |
| AFTER THE 2010 INCIDENT | 45 |
| THE 2012 INCIDENT | 45 |
| Day One | 45 |
| Day Two | 45 |
| Day Three | 46 |
| ELEVEN ALLEGATIONS | 47 |
| THE DEFENDANT AND THE POLICE | 63 |
| The defendants support for the police | 64 |
| Support for specific investigations | 66 |
| The lawfulness of payments to the police | 66 |
| The defendant and the foreseeability of SLP abuses | 67 |
| The defendant's influence over the police | 68 |
| INDUSTRY STANDARDS | 70 |
| DISCUSSION | 73 |
| EMPLOYEE VICARIOUS LIABILITY | 73 |
| NON-EMPLOYEE VICARIOUS LIABILITY | 73 |
| ACCESSORY LIABILITY | 74 |
| PROCUREMENT LIABILITY | 75 |
| MALICIOUS PROSECUTION | 75 |
| NEGLIGENCE | 76 |
| Duty of care | 76 |
| Acts and omissions | 80 |
| Liability for the acts of third parties | 81 |
| Caparo v Dickman | 83 |
| Breach and causation | 84 |
| BREACH OF NON-DELEGABLE DUTY | 87 |
| CONCLUSION ON LIABILITY | 88 |
| QUANTUM | 88 |
| AFTERWORD | 91 |
INTRODUCTION
The deeply unhappy events with which this judgment is concerned unfolded in Tonkolili, a remote and inaccessible district in the north of Sierra Leone in West Africa. For centuries, generation upon generation of local villagers had lived and worked on the land. Most of them depended for their livelihoods upon small scale local trading or the subsistence farming of rice and other crops. Then, ten years ago, beneath the lands which they had farmed so modestly over countless generations was discovered the largest iron ore deposit in Africa.
In 2010, the first defendant, African Minerals Ltd (“AML”), secured a licence conferring upon it the mining rights to the area and forthwith embarked upon a massive infrastructure project to construct a mine and build a railway to transport the ore to the coast. For many of those living in the vicinity, the experience must have been akin to that of an intense, unheralded and almost instantaneous industrial revolution with all of the attendant stark contrasts of good and ill effects.
Thus it was that the impact of the arrival of AML upon the local population was both profound and immediate. On the one hand, the promise of relatively well paid and steady employment augured well. On the other, the inevitable disruption to traditional ways of life together with the tensions and resentments consequent upon, for example, disputes over wage levels and the distribution of compensation payments gave rise to serious conflict.
In November 2010, and again in April 2012, matters came to a head. Disputes between AML and members of the community prompted a significant overreaction from some members of the Sierra Leone Police (“SLP”) whose response to disruptive protests and threats against the personnel, property and business of AML soon degenerated into violent chaos during the course of which many villagers were variously beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed.
The claimants allege that they were among the victims of these abuses. They also contend that, although the SLP perpetrated the worst of these excesses, the defendants are nevertheless liable to compensate them by the application of a broad range of distinct common law remedies to the facts of this case. The defendants deny liability in respect of each and every legal ground relied upon.
For the sake of convenience, a cohort of six lead claimants has been selected in respect of whose claims it is hoped that the findings of this Court will facilitate the disposal of forty or so others. Those six comprise the following:
• Musa Walerie, a villager from Kemedugu, who earned a living through farming and panning for gold. He claims to have been falsely arrested during the 2010 incident at the instigation of an employee of the defendant following which he was beaten by the police and by that same employee. He was detained temporarily at the mine camp after which he was held in extremely poor conditions before being released after about three months.
• Alpha Dabo, a villager from Ferengbeya, who worked as a motorbike taxi driver. He alleges that during the 2010 incident he was beaten into unconsciousness by police officers at his home and thereafter woke up in hospital with serious injuries.
• Tamba Koroma, a villager from Kegbema, who worked as a farmer. He alleges that he was falsely arrested at his home during the 2010 incident. He was dragged out of his house and taken to the mine. He was assaulted by police officers both during the course of the journey and at the mine itself. Thereafter, he was detained in very bad conditions at a police station for two months and then at a prison for five weeks following which he was released in a state of very poor health.
• Alhaji Usman Bangura, a villager from Bumbuna, who worked in the building trade. He witnessed the unrest over two days during the 2012 incident. On the second day, he was in Bumbuna in search of his partner and son when he was shot and wounded by police following which he was taken to hospital for treatment.
• Kadie Kalma, a villager from Bumbuna, who traded in electrical goods. She was looking for her son on the second day of the 2012 unrest when she was beaten and falsely arrested by the police. She was taken to the police station but was able to effect her release. On the following day, on her way to the doctor's, she heard gunshots and began to run. She was hit by a bullet to her side.
• Andrew Conteh, a villager from Bumbuna, who ran a small repair business from a kiosk. During the course of the 2012 incident he ran home from his kiosk when he heard gunfire. He returned later in the day to find that the kiosk had been looted. His possessions and those of his customers were gone. Neighbours told him that the police were responsible.
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” and references in the witness evidence and documents to “AML” should (unless the contrary appears) be taken to apply to the defendant.
In the interests of clarity of exposition, I propose firstly to identify the broad contours of the law relating to each of the causes of action relied upon by the claimants before making the necessary findings of fact on the evidence. The final task will be to apply the law, refined by way of more closely focussed analysis, to those findings in order to determine the outcome of these claims.
THE LAW
It is uncontroversial that the law of Sierra Leone applies to the issues both of liability and quantum. Gratifyingly, however, the parties are agreed that, in respect of liability, the law of Sierra Leone can be treated, for all practical purposes, as being identical to that of England and Wales. The position with regard to quantum is less straightforward and its consideration may conveniently be postponed until later in this judgment.
It is not disputed that, during the course of the two incidents with which this case is concerned, many villagers fell victim to various torts committed by members of the SLP. These included battery, trespass to goods, false arrest and false imprisonment. However, the SLP is not, and never has been, a party to this litigation. Although any claim against the SLP would probably have been relatively straightforward from a purely jurisprudential point of view, the practical challenges are likely to have...
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