Wambura & Others v Barrick TZ Ltd (formerly known as Acacia Mining Plc)
| Jurisdiction | England & Wales |
| Judge | Master Stevens |
| Judgment Date | 23 October 2023 |
| Neutral Citation | [2023] EWHC 2582 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2019-003295 QB-2022-000943 QB-2022-002474 QB-2022-002572 QB-2022-002776 |
[2023] EWHC 2582 (KB)
Master Stevens
Case No: QB-2019-003295
QB-2020-001883
QB-2022-000943
QB-2022-002474
QB-2022-002572
QB-2022-002776
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Philippa Kaufmann KC and Toby Fisher (instructed by Hugh James LLP) for the Claimants
Lord (David) Wolfson KC and Andrew Bershadski (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the Defendants
Hearing dates: 17 th May 2023 & 12 th July 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 23 rd October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
These proceedings concern claims brought by 14 Tanzanian nationals for personal injury and death said to be caused by Tanzanian police engaged by the defendants for security operations on or near the North Mara gold mine in North-West Tanzania. This is not the first case to have been brought in the High Court against the mine for damages for injuries and death caused to local people living within the vicinity of the mine. It is alleged that at times the police force was deployed, and actively directed in their activities, by the private security team employed by the defendants. One incident also includes an allegation that mine guards were implicated in an attack alongside the police, and in another incident, there is an allegation that the defendants' private security team was directly involved alongside the police.
At all material times the first defendant was Tanzania's largest gold producer and one of the five largest gold producers in Africa. The second defendant was a wholly owned indirect subsidiary of the first defendant, and the company which held the licence for the mining activity at North Mara. There have been 4 case management conferences and disclosure has been protracted, involving the defendants uplifting over 1 million documents and reviewing in excess of 110,000. The case has been budgeted through to a preliminary trial on liability listed for June 2024.
All of the claimants live in remote rural villages near the mine, an area said to have one of the highest incidences of poverty severity in Tanzania. The expansion of the mine has involved the defendants acquiring more local land which has impacted the ability of local villagers to earn a living; that land was previously used by them not only for agricultural activities but also for small-scale prospecting. Those responsible for the mine have, over time, initiated a number of projects to assist the local economy and to address historic reported human rights violations; these are the subject of international reports and ownership and control of the mine has changed hands since the majority of the reports and the incidents complained of in these proceedings, which span a period between 3rd October 2014 and 2nd September 2019.
BACKGROUND TO THE REQUEST FOR SECURITY EXPERT EVIDENCE
At the second case management hearing (“CMC”) on 7 th December 2022 a direction was given that the question of whether the claimants should have permission to call expert security evidence should be determined after completion of initial disclosure and any consequential amendments to the Particulars of Claim.
In early May 2023, shortly before the next CMC, the parties corresponded further on the issue, and on 11 th May 2023 the claimants indicated in a letter that they proposed an expert “ specifically experienced in issues of the use of firearms and the use of force”. They noted that the defendants had denied “ unreasonable and excessive force was used by the police in the relevant incidents” and their denial that “ the defendants were aware of a likelihood that the police would use unreasonable and excessive force against trespassers”. The claimants expressed a belief that the court would benefit from expert evidence on those contested issues and indicated that they had identified Gary White MBE as the appropriate expert. They supplied his CV and introduced him as a “ law enforcement expert with extensive operational and senior command experience in policing violent disorder”. They explained that he had “ advised and trained national police forces across the world, including in a number of African countries, on public order policing, human rights and the use of force… He has particular experience in these issues in the context of extractive industries… Mr. White has contributed to or authored authoritative publications on human rights and the use of force, including Amnesty International's International Guidelines on the UN Basic Principles on Police Use of Force and Firearms”.
The claimants' letter identified that the “ expert will plainly assist the court in determining whether Tanzanian police used excessive force in breach of international standards and whether any measures adopted by the defendants to mitigate the risk of police using excessive force were adequate when assessed against international standards and comparators”. As to any reliable body of knowledge or experience on human rights and use of force, they cited the UN Basic Principles of Police Use of Force and Firearms by Law Enforcement Officers and the Voluntary Principles on Security and Human Rights. They also referenced the UN Guiding Principles on Business and Human Rights.
In their letter the claimants specifically identified 3 issues which the expert evidence should address:
i) use of force by the Tanzanian police force generally;
ii) use of such force during the relevant time at the mine, and in the specific circumstances of each of the cases; and
iii) the measures taken by defendants to mitigate the risks of excessive use of force by the police.
The defendants responded the next day stating that the first issue identified was not one which fell to be decided in the case, and other matters raised were to be determined on the basis of factual evidence. They maintained that no proper justification was given as to why the court could not assess the security matters for itself, and noted that the claimants had provided no reasons to distinguish this case from 2 earlier High Court cases where they said similar issues had been considered (I will return to these when summarising the defendants' submissions on this particular application below at [33–42]).
In the claimants' skeleton argument dated 15th of May 2023, prepared in advance of the third case management hearing on 17th May 2023, a renewed request for permission for an expert on security issues was made. This time the claimants produced a CV from Mr van der Walt, whose expertise was said to be “security risk assessment and risk management in the extractive industries”. It was submitted that Mr van der Walt was “well placed to assist the court in:
i) The process of security risk assessment and risk management in extractive enterprises in complex environments in Africa, focusing in particular on the integration of police into security management; and
ii) the extent to which the defendants risk assessment and risk management process accord with recognised industry practice and standards.”
The request for permission was opposed by the defendants. In their skeleton argument, they noted that the claimants had been able to plead a detailed case on the issues which they said the expert was required to opine on, without the benefit of any expert report, such that they believed that evidence could not be said to be “necessary”. They also maintained that such evidence was unlikely to provide significant assistance to the court as the judge would have CCTV evidence relating to many of the incidents, and was likely to hear from numerous witnesses, including many called by the claimants themselves; an experienced trial judge it was said would therefore be able to decide the issues without expert evidence. They referenced other cases where such evidence had been held to be inadmissible in any event.
Due to a shortage of time for full submissions at the CMC, an order was made providing a timetable for the following steps:
i) The claimants to provide the defendants with proposed terms of reference for the instruction of the expert, together with the identity and CV of the individual they sought to instruct and a letter from the expert if so advised.
ii) Subsequently the defendants to indicate whether they agreed on the terms of reference or to provide alternative terms.
iii) Absent any agreement the parties were to file and serve any remaining written submissions, so the court could determine both permission and terms of reference for any such expert.
In fact, there were in addition, supplemental submissions at a further CMC already listed for 12th July 2023. That hearing lasted all day although the court's major preoccupation was with ongoing disclosure issues, so a decision was reserved.
THE LEGAL TEST
CPR Part 35 governs the use of expert witness evidence in civil proceedings. It is useful to remind myself that expert opinion evidence is an exception to the general rule that only evidence of fact may be adduced to the court. It therefore follows quite naturally that the court should not be shy about limiting the occasions when such evidence can be adduced. Indeed, the court has to be satisfied in 2 regards, pursuant to CPR Part 35 before granting permission, namely:
i) whether such evidence is admissible; and
ii) whether it is “reasonably required to resolve the proceedings”.
The court must make its decision in accordance with the overriding objective.
AUTHORITIES
By way of introduction, the test of admissibility has been usefully...
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