Vilca and Others v Xstrata Ltd and another

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Foskett
Judgment Date21 July 2016
Neutral Citation[2016] EWHC 1824 (QB)
Date21 July 2016
Docket NumberCase No: HQ13X02561

[2016] EWHC 1824 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon Mr Justice Foskett

Case No: HQ13X02561

Between:
Daniel Alfredo Condori Vilca & 21 Others
Claimant
and
(1) Xstrata Limited
(2) Compania Minera Antapaccay S.A. (Formerly Xstrata Tintaya S.A.)
Defendants

Charles Béar QC and Kate Boakes (instructed by Leigh Day) for the Claimants

Shaheed Fatima QC (instructed by Linklaters LLP) for the Defendants

Hearing dates: 8 and 11 July 2016

Approved Judgment (No.2)

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.

Mr Justice Foskett

Introduction

1

This judgment deals with another aspect of the fraught issue of the e-disclosure in this case. The judgment needs to be read in the light of the judgment in Vilca and 21 others v Xstrata Limited and another [2016] EWHC 389 (QB) and the Supplemental Judgment reported under the same name at [2016] EWHC 946 (QB).

2

A number of issues have been raised. Some were resolved during the hearings that took place on 8 and 11 July 2016 and some have required my decision. A sense of the scale of the disputation can be obtained from the volume of material lodged prior to the hearing.

3

The most significant matter for consideration is the application made on behalf of the Claimants that the Defendants be ordered to procure what is described as "an appropriate re-review of their disclosure", to be carried out by a lawyer independent of Linklaters LLP (see further at paragraphs 8–34 below).

4

I summarised the nature of the case in paragraphs 9–17 of the first judgment. In shorthand terms, I described the broad nature of the allegations and the nature of the associated disclosure as follows:

"16. Various breaches of duty, both under English and Peruvian Law are alleged, but the validity or otherwise of the legal arguments is not relevant at this stage. Mr Béar summarised the pleaded case as involving allegations that the defendants incited, procured or participated in the police violence, facilitated the unlawful actions of the police by offering logistical support, facilities and information and also bore responsibility through a breach of a duty of care owed to the protesters. There is, as might be anticipated, an issue about vicarious liability. All these allegations are firmly denied by the defendants.

17. The disclosure issues that arise relate, in general terms, to the issues thus raised. Again in very general terms, what was known, discussed and planned at a relatively senior level within D1 and D2 and between those companies and the PNP and any other security personnel before the anticipated protest would be potentially relevant, as would any documents emerging during the events themselves. Anything that represented some kind of analysis of the events that occurred thereafter could also be relevant."

5

Following the order made pursuant to the rulings contained in that judgment and the Supplemental Judgment the disclosure exercise has continued. The Claimants suggest that it is not being carried out in accordance with the normally accepted criteria and that the approach to it has been "grudging". A particular omission (reinforced by other matters), it is suggested, has given rise to the need for the re-review to which I have referred.

6

I would simply note that I made the following observation in my first judgment at paragraph 100:

"At the moment, the instructions of those instructing Linklaters seem to be to limit disclosure as much as possible. There is, of course, a perfectly understandable costs element to instructions of that nature and also an understandable concern that sensitive documents that go beyond what it is reasonable or necessary to disclose should not be disclosed. However, whatever the legal or factual merits of the case advanced for the claimants, its nature is tolerably clear and the kind of document that is potentially relevant to it is also tolerably clear. The defendants would be ill-advised to give the appearance of being reluctant to cooperate in the process of making these documents available …."

7

I will deal with this application first.

A re-review?

8

I described the "first level manual review" of documents revealed in the e-disclosure exercise in paragraph 35 of my first judgment. The majority of documents generated by the searches were in Spanish. Any document not excluded by this process is next considered at a second level manual review by a Spanish-speaking associate and the final level of review would be at partner or senior associate level prior to which there would have to be translation of the relevant document. It is through that process that a document that is chosen for disclosure or non-disclosure is identified.

9

An e-mail exchange on 13 April 2012 between Mr Sartain (see paragraph 79 of my first judgment) and Mr Marun (see paragraph 46 of my first judgment) lies at the heart of the Claimants' application. Each was a member of the CCBU, Mr Sartain the global CEO and Mr Marun the V-P. However, the exchange started a little earlier than the particular e-mails to which I will draw attention.

10

It starts for this purpose with an e-mail to Mr Mick Davis, D1's CEO at the time, sent by Mr Chris Bain, the Director of CAFOD (the official Catholic aid agency for England and Wales) on 30 March 2012. That e-mail referred to the fact that CAFOD's "partner the Vicariate of the Sicuani Prelature 1 will be in London, together with the Mayor of Espinar and the head of the Espinar civil society network on Thursday 26 th April 2012" and inviting Mr Davis to "direct us to the appropriate person within Xstrata in London so that we can take this opportunity for our partner to discuss options for improving" communications in Peru about the concerns that exist locally "about soil and water quality, local security and other issues" arising from the Tintaya and Antapaccay mines. There was no reply to that e-mail and Mr Bain forwarded his e-mail again on 13 April 2012 to Mr Davis saying that "[planning] is well underway for the itinerary of our Peruvian partners coming in a few weeks" and reminding him of the request "to put us in touch with the appropriate person at Xstrata so that we can organise a meeting whilst they are in London this month." It appears

that a Draft Meeting Agenda was sent with this e-mail indicating the likely participants from the CAFOD side, one of whom was the Mayor of Espinar, another being Sergio Huamani Hilario (see paragraph 13 below).
11

These e-mails were addressed "Dear Mick", but it is not clear to what extent Mr Davis knew of Mr Bain and CAFOD because he forwarded the second e-mail to Mr Sartain, Ms (Claire) Divver and Mr Noethiger with the following message:

"Charlie

Who are these people (I have not heard of them before) and do you know anything about the issue. Do you want Claire to meet with the ????

Mick"

12

The direct response on the same day from Mr Sartain to Mr Davis (which was copied to Ms Divver, Mr Noethiger, Mr Drago and Mr Marun) was as follows:

"This Cafod group is an anti-mining NGO and it seems they are sponsoring this delegation on a tour to Europe, being led by the Mayor of Espinar, who is a total reprobate. Over the past year we have been countering his moves against the company through the strong support that we enjoy from the majority of the community groups in the Espinar Province. The Mayor has been making outrageous claims, basically trying to extort more money from the company, with his principal goal to increase the "Convenio Marco" or provincial contribution (negotiated to settle the BHBP dispute in 2004) from 3% of EBIT to 30% of EBIT!!

Domingo alerted Claire to this likely visit late last week and we need to coordinate the finalisation of a strategy to counter his sponsored visit to the UK and Europe. This will most likely include sending an alternative reputable delegation from Espinar to counter the lies that will be spread by this group. We understand that this delegation is also planning a visit and protests in Switzerland. It is being co-sponsored by Swiss NGO Multiwatch.

We will finalise the strategy in coordination with Claire early next week."

13

The Mayor of Espinar, who Mr Sartain had described as "a total reprobate", was Oscar Mollohuanca Cruz. His name figures prominently in the two Intelligence Reports to which I will refer below (see paragraph 39), as amongst others does the name Sergio Huamani Hilario (see paragraph 10 above). He is named in the Intelligence Reports as the Vice-President of FUDIE (which is the Espinar Civil Society Interest Defense Association). He is a claimant in the present proceedings.

14

According to the disclosed documents, it appears that both Sr Cruz and Sr Hilario were intending to attend the meeting that did in fact take place in London on 26 April 2012, but the Minutes suggest that only Sr Hilario attended (together with Ruth Ibarra, the Director of the Vicariate of the Sicuani Prelature). Mr Marun and Ms Divver attended on behalf of Xstrata.

15

Returning to the sequence of e-mails, it is now clear that Mr Sartain sent a direct e-mail to Mr Marun (not copying it to anyone else but described as of "high" importance) on the back of the e-mail chain ending with Mr Davis' "Who are these people" e-mail (see paragraph 11 above) in the following terms:

"José pienso que deberíamos tomas un approach muy directo, proactivo y fuerte para enfrentar estos h de p's.

Saludos

Charlie"

Translated this is:

"José, I think we should take a very direct, proactive and strong approach to confront these SOBs.

Regards

Charlie."

16

I have been told that the abbreviation "h de p's" is an abbreviation for "hijos de puta" — "sons of whores", an...

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