Zambian villagers poised to take pollution case against VedantaPublished by MAC on 2016-05-29
Source: Leigh Day
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Zambian villagers allowed to take legal action against mining giant in UK
High Court judge allows 1,826 Zambian villagers to take legal action against mining giant Vedanta Resources Plc through the UK Courts
Leigh Day press release
27 May 2016
A High Court judge has agreed that a legal claim against UK based mining giant Vedanta Resources Plc and its subsidiary Konkola Copper Mines (KCM), on behalf of 1,826 Zambian villagers can proceed in the UK Courts.
In his ruling, handed down today, Mr Justice Coulson granted jurisdiction over the claims, which involve allegations of serious environmental pollution, and rejected the Defendants’ arguments that the cases must be brought in Zambia.
The judgment follows a hearing in April this year where the court heard arguments from the Defendants, Vedanta, one of the UK’s largest mining companies with an asset base of US$37 billion, and its Zambian subsidiary KCM, against the jurisdiction of the English courts to try the claims.
Both UK-based Vedanta and Zambian KCM argued that the UK court had no jurisdiction to try the claims against them. Lawyers for the mining companies argued that the claims against both Defendants should be tried in Zambia because the Claimants are Zambian and the damage occurred in Zambia.
However, Leigh Day, the lawyers for the claimants, argued that the cases should be tried by the English courts. They argued that under EU law the Claimants had a legal right to bring a claim against UK-based Vedanta. They also argued that Vedanta should bear equal legal responsibility, given its control over its mining subsidiary, the profit it makes from the mine and its alleged knowledge of the pollution.
The Claimants’ lawyers further argued that KCM was a necessary and proper party to the claims and that there was a real risk that they would not achieve justice if the claims are not tried in the UK.
Mr Justice Coulson rejected the arguments of both Defendants. He agreed that the Claimants had a legal right to bring their claim against the UK company Vedanta under EU law, upholding the EU case of Owusu and finding that it applied to group action claims.
In his judgment Mr Justice Coulson also referred to the judgment in U & M Mining Zambia Ltd v Konkola Copper Mines PLC (2014) where the English court had previously found that KCM had repeatedly acted in a dishonest and unjustified manner.
Mr Justice Coulson commented on the fact that KCM relied on evidence from a witness who had previously been found to be dishonest.
Mr Justice Coulson also stated “KCM may not be able to honour their debts as they fall due” and therefore “a claim against the much wealthier parent company is justified on practical terms too” (paragraph 81 of the judgment).
In rejecting KCM’s application and allowing the claim against them to proceed in the UK courts, Mr Justice Coulson made a number of important findings. He found that the claims against KCM had a real prospect of success in part because “there have been, as a matter of record, discharges of toxic effluent from the mine into the relevant waterways” (paragraph 99(b) of the judgment) and because “there is no attempt, in the evidence served on behalf of KCM, to challenge the underlying basis of the claimants’ claim against KCM” (paragraph 99(d) of the judgment).
Mr Justice Coulson further found that KCM are a necessary or proper party to the claim against Vedanta and that England is the appropriate place to bring the claim.
Mr Justice Coulson rejected the evidence submitted by KCM that the Claimants would be able to pursue their claims in Zambia, stating that, “if these claimants pursued KCM in Zambia, they would not obtain justice” (paragraph 177 of the judgment).
The Judge noted that the Claimants are clearly very poor and cannot afford legal representation and there is no alternative method of funding available to them in Zambia including through legal aid. Furthermore, there is a clear lack of lawyers experienced in environmental group litigation in Zambia.
Finally, Mr Justice Coulson found that the evidence suggested that these sorts of claims could not be properly litigated in Zambia due to the fact that the few cases that have been attempted have failed.
Martyn Day, Senior Partner and the lawyer at Leigh Day representing the villagers, said: “Given the fact that our clients continue to suffer on a daily basis as a result of what we claim is the continual pollution by the Defendants mining operations, we hope that the Defendants will now engage in meaningful discussions and try to resolve these claims so that our clients can rebuild their lives.”