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Supreme Court decision on Vedanta vs Zambian farmers will help those seeking justice against corporate abuse, say lawyers

30/04/19 - Oliver Holland, Associate Solicitor at Leigh Day.

A solicitor who represented the farmers explains how this landmark decision might impact other claims against corporations.

Following the Supreme Court decision on 10th April 2019 to allow the claims in Lungowe & 1,826 Others v Vedanta Resources & Konkola Copper Mines to proceed against both defendants in English courts, the claimants now have a prospect of obtaining justice for the pollution they say has been blighting their lives for over a decade.

Leigh Day were first instructed by the claimants in April 2015, in order to pursue claims against UK-headquartered multinational Vedanta Resources and its Zambian subsidiary Konkola Copper Mines, in respect of alleged water, land and air pollution from the defendants’ copper mine in northern Zambia.

The claimants had been unable to obtain justice in Zambia, in part due to the lack of funding support available for clients with little money, and a lack of lawyers experienced in claims of this nature.

The claimants are from Shimulala, Helen, Kakosa, and Hippo Pool - four farming communities along the Mushishima and Kafue rivers. The area is just outside the Nchanga Copper Mining area, which features open and closed pit mines, as well as a copper processing area, with a copper smelter, a pollution control dam, and five copper tailings dams.

The claimants allege that harmful liquid waste from the Nchanga Mine is entering the Mushishima and Kafue rivers and gravely impacting their lives. They rely on these rivers for washing, bathing, fishing, cooking, drinking water and irrigating farms.

They further allege that toxic dust and fumes from the tailings dams are impacting their farmland, drinking water and general health. They are seeking damages for personal injuries, damage to property, loss of income, loss of amenity, and loss of enjoyment of land.

They are also seeking injunctive relief to compel the defendants to clean up the land and waterways, to arrange the provision of clean drinking water, and to for the pollution to stop.

The Supreme Court decision

Aside from its impact on other cases, the Supreme Court decision means that these long-suffering claimants are able to pursue justice in English courts. Had the defendants been successful in preventing the claim being brought in English courts, there would have been no other avenue available to the claimants.

The effect of a jurisdictional challenge is rightly that the substantive claim is stayed, and no further work can be done until the jurisdiction challenge has been resolved. This meant the claims were put on hold for four years while a technical legal battle progressed slowly through the English judicial system.

The case will now return to the Technology and Construction Court (a division of the High Court) where the substantive claims will be heard. A case management hearing is likely to be listed before the summer, and the claimants will be seeking a timetable to trial and, importantly, for the defendants to file a defense. Before the resolution of these claims there will be extensive expert evidence so that the parties can fully understand the impact of the alleged pollution on the claimants.

Of course, the claimants are hopeful that the defendants will seek to resolve these claims without the need to go to trial. But if a trial is needed we would hope that it would be within the next two years.

An important effect of the decision is that Konkola Copper Mines (KCM) is now within the jurisdiction of the English courts for the purposes of these claims. (The claimants could already sue Vedanta in the UK under EU law. See Article 4.1 Brussels Recast Regulation and Owusu v Jackson).

Zambian law will apply to the claim. While it very much mirrors the common law of England and Wales, Zambian mining law imposes strict liability on the holder of a mining licence for “any harm or damage caused directly or indirectly by the mining operations or mineral processing operations”.

The imposition of strict liability in respect of KCM as the licence holder means that the claimants do not need to prove fault (e.g. negligence), making the strength of their claim greater than if they were only pursuing the claim against Vedanta.

What this means for other cases

While the most important impact of the Supreme Court decision was to allow our clients’ claims to proceed in this jurisdiction, there was of course a wider impact on other cases, including two pending before the Supreme Court.

Cases involving Shell and Unilever are awaiting decisions on the permission to appeal applications to the Supreme Court, following successful jurisdiction challenges by the defendants at the High Court and Court of Appeal. (These are Okpabi & Others v Royal Dutch Shell Plc and SPDC and AAA and Other v Unilever Plc and Unilever Tea Kenya Limited).

While it is difficult to predict what impact the Vedanta judgment may have on these applications, it is certainly supportive of the position of the claimants.

In particular, Lord Briggs, (the judge in the Vedanta decision), identified the corporate material published by Vedanta that asserted responsibility for environmental standards and controls, for their implementation throughout the group, and for their monitoring and enforcement, as:

“sufficient on their own to show that it is well arguable that a sufficient level of intervention by Vedanta in the conduct of operations at the Mine may be demonstrable at trial, after full disclosure of the relevant internal documents of Vedanta and KCM, and of communications passing between them.”

The claimants in the Shell and Unilever cases both relied on corporate materials in a similar vein, and Lord Briggs’s findings contradict those of the Court of Appeal in those claims.

It is hoped that the Supreme Court will now grant permission to appeal in both the Shell and Unilever cases to ensure the consistent application of the parent company principle it set out so clearly in Vedanta. This judgment has clarified and advanced the law to some degree for future cases involving parent company liability.

Importantly, a multinational may now be held to account for policies and procedures it publishes in its corporate literature - such as in respect of the environment, health and safety and operational concerns - whether or not it actually implements those policies and procedures. When it does implement them they need to be properly implemented and fit for purpose.

This is an important advance in the law and certainly one that will mean greater accountability and oversight of corporations.

Oliver Holland is Associate Solicitor at Leigh Day.