BACKGROUND AND SUMMARY
|This is an appeal in the UK Supreme Court (“SC”). The litigation in this matter arises from alleged toxic emissions from the Nchanga Copper Mine (“the Mine”) in the Chingola District of Zambia. The claims are based in delict, namely on the alleged breach of a common law duty of care and also on the alleged breach of a statutory duty set in Zambian national legislation. The matter was first heard in the English High Court (“High Court”) in 2016 and subsequently before the Court of Appeal in 2017 with both Courts ruling in favour of the below claimants.
The claimants, who are the respondents in this appeal, are a group of some 1 826 citizens from four different communities within the Chingola District.
The claimants allege that both their health and farming activities have been damaged by repeated emissions of toxic substances, since 2005 to date, from the Mine into those watercourses.
The immediate owner of the Mine is Konkola Copper Mines plc (“KCM”) a public company incorporated and domiciled in Zambia. KCM is a subsidiary of Vedanta Resources plc (“Vedanta”), the parent company of a multinational group listed on the London Stock Exchange. Although the Zambian government owns a stake in KCM, Vedanta retains the ultimate control of same. Vedanta is incorporated and domiciled in the United Kingdom and employees 82 000 people worldwide. Vedanta and KCM are the first and second defendants respectively and the appellants in this appeal.
In 2015 the claimants instituted proceedings in the High Court and served papers on Vedanta within the jurisdiction and on KCM outside the jurisdiction, with permission from the court obtained on a without notice application. The cause of action against KCM was based on the fact that it is the operator of the Mine and against Vedanta the basis was that it is alleged to have exercised a high level of control over KCM’s mining operations and over its compliance with the applicable Zambian health, safety and environmental law.
Against Vedanta, the claimants relied on Article 4.1 (“art 4.1”) of the Recast Brussels Regulations which applies to Vedanta due to its English domicile. Against KCM the claimants relied on the Rules of Civil Procedure and the “necessary party” principle which allows for service outside of jurisdiction.
Both Vedanta and KCM applied to challenge jurisdiction. The applications were heard as one and the High Court dismissed their applications in 2016. The Court of Appeal subsequently dismissed their appeal in 2017.
|1) Held with regard to the abuse of EU law
The claimants had a right in terms of art 4.1 to proceed against Vedanta out of the English court even though they were not domiciled in England and even in the face of connecting factors pointing to process the matter out of the Zambian court. They had a genuine reason for suing Vedanta out of the English court and most likely would proceed as so even if they sued KCM alone in Zambia. Exceptions against the use of art 4.1 are to be applied restrictively, with collusive use of same as an example of a valid reason for exception. The judge’s factual finding of the existence of a genuine claim for damages which was upheld by the Court of Appeal could not be overturned. After the matter of Owusu v Jacksonart 4.1 has become the primary law of jurisdiction and forum conveniens arguments cannot stand. SC thus ruled in favour of the claimants.
2) Held with regard to the England as the proper place
This issue requires a summary examination of the connecting factors to determine the proper place where the matter as a whole may be heard. Courts have previously chosen England as the proper jurisdiction where it was clear that claimants would still continue to pursue part of the claim in England against the domestic defendant. This was to avoid the risk of irreconcilable judgments on the same matter in two different jurisdictions. The High Court Judge applied this approach. The SC did not agree with this approach since at that stage, Vedanta had already offered to submit to the jurisdiction of a Zambian court. Upon a look at the connecting factors, the SC found that most pointed to Zambia; where the claimants and witnesses lived, and evidence was based, for instance. In light of this and the fact that Vedanta was willing to submit to a Zambian court, the SC found that the risk of irreconcilable judgments which would normally lead to England being the proper place was set in due to the choice of the claimants to proceed in England.
Nothing suggested that the claimants should not be expected to be reasonable and choose Zambia to avoid this risk. The SC thus found in favour of the defendants that England was not the proper place.
3) Held with regard to the real triable issue against Vedanta For fairness, this question is to be decided the same way a court would a summary judgment, with the avoidance of mini-trials and without the disclosure of the opposing party’s documents. Factors found in Chandler v Cape plc are not restrictive and serve as mere examples of when a parent company may be deemed to have exercised sufficient control. The test is whether the parent company exercised enough control over its subsidiary’s operations to have itself incurred a common law duty of care to third parties. The test is the same for a Statutory Duty.
Where a parent company publishes material where it holds itself to be responsible for the relevant activities, the responsibility will be imputed. The SC did not agree with how the High Court treated the examples in Chandler as a code but felt that the Court of Appeal had remedied the error. The SC found that there was sufficient material indicating that Vedanta had asserted its control over KCM’s mining operations. It had also implemented standards through training, monitoring and enforcement. The SC thus found that the claimants had a triable issue against Vedanta.
4) Held with regard to substantial justice in Zambia
The SC decided that the claimants should be allowed to proceed in England against both defendants. It found that since the claimants are a group of poor farmers they may not be able to fund the matter in Zambia where resources such as conditional fee agreements are unavailable (illegal), especially against an opponent such as KCM which has in the past proved to be unyielding. The SC considered Nyasulu v Konkola Copper Mines plc. where in a previous group action against KCM in Zambia, the group concerned failed to obtain substantial justice due to their own lack of funds and their legal team’s lack of resources to see their matter through well enough.
|The Supreme Court disagreed with the approach of the High Court Judge’s approach which allowed claimants to pursue part of the claim in England against the domestic defendant in order to avoid the risk of clashing judgments on the same matter in different courts. The SC rejected this as Vedanta had already submitted to the jurisdiction of the Zambian Court and found that there were more substantial connecting factors tying the jurisdiction of a Zambian Court to the matter. The domicile of the claimants as well as the witnesses who would serve as crucial proof in the arguments of the claimants, were in Zambia.
The SC found that the risk of irreconcilable judgements between differing jurisdictions could not sway the argument in favour of England as the proper place for the matter to be heard, and that the claimants are still expected to be reasonable and choose Zambia to avoid the risk.
Additionally, the Supreme Court disagreed with the handling of the application of the factors set out in Chandler insofar as the High Court used the factors as a code according to which it concluded that indicators that Vedanta exercised control over KCM’s mining operations were not sufficient.
South African persons too may, subject to the law above, proceed in England against a South African juristic person whose parent company is domiciled in England.
In the case of Lubbe v Cape plc the facts of the case similarly pointed to a stronger jurisdictional connection to South Africa than to England. The highly likely chance that justice would be denied due to the facts that legal representation would probably be unavailable to the claimants and the lack of legal structure surrounding multi-party action in South Africa, the House of Lords accordingly held that the action could nonetheless be continued in English courts. This approach was followed for the first time in Chandler, where a duty of care was owed to an injured employee by the employer’s parent company.
Both of the above judgments served as support for the case in question, both of which involving South African claimants, employees of subsidiary companies parented by companies domiciled in England, who successfully pursued action against the parent companies for injuries incurred during the course of their employment. It can thus be said that the Vedanta judgment is relevant in South African law, as a similar approach will be followed when South African citizens seeking claims for damages in similar circumstances wish to sue pursue their action in English courts.
Written by Justin Howard and supervised by Jasvir Sewnarain