Charles Gibson QC Richard Hermer QC

Geraint Webb QC Marie Louise Kinsler QC

Ognjen Miletic Robert Weir QC

Christopher Adams Edward Craven

(Instructed by Herbert (Instructed by Leigh Day)
Smith Freehills LLP)

Interveners (1 and 2)

Tim Otty QC
Tim Johnston

Professor Robert McCorquodale

George Molyneaux

(Instructed by Omnia Strategy

LLP)

Intervener (3)

Likando Kalaluka SC

Attorney General of Zambia

Interveners:-

(1)	The International Commission of Jurists (written submissions only)
(2)	The Corporate Responsibility (CORE) Coalition Ltd (written submissions only)
(3)	Attorney General of Zambia (written submissions only)

LORD BRIGGS: (with whom Lady Hale, Lord Wilson, Lord Hodge and
Lady Black agree)
Introduction
1. This litigation arises from alleged toxic emissions from the Nchanga Copper Mine in the Chingola District of Zambia. The claimants, who are the respondents to this appeal, are a group currently consisting of some 1,826 Zambian citizens who live in four communities within the Chingola District. They are, by any standards, very poor members of rural farming communities served by watercourses which provide their only source of water for drinking (by themselves and their livestock) and irrigation for their crops. They say that both their health and their farming activities have been damaged by repeated discharges of toxic matter from the Nchanga Copper Mine into those watercourses, from 2005 to date.
2. The Nchanga Copper Mine (“the Mine”) consists, in part, of an open-cast mine, said to be the second largest in the world, and in part of a deep mine. Its
immediate owner is the second defendant Konkola Copper Mines plc (“KCM”),
which is a public company incorporated in Zambia. KCM is the largest private employer in Zambia, employing some 16,000 people, mainly at the Mine. The first
defendant Vedanta Resources plc (“Vedanta”) is the ultimate parent company of
KCM. It is the parent of a multinational group, listed on the London Stock Exchange, with interests in minerals, power, oil and gas in four continents. Vedanta is incorporated and domiciled in the United Kingdom. Although Vedanta claims only to have 19 employees of its own, eight of whom are its directors, the Vedanta Group employs some 82,000 people worldwide. KCM is not a 100% subsidiary of Vedanta, since the Zambian government has a significant minority stake, but materials published by Vedanta state that its ultimate control of KCM is not thereby to be regarded as any less than it would be if wholly owned.
3. The claims against both defendants are pleaded in common law negligence and breach of statutory duty. Those causes of action are pursued against KCM on the basis that it is the operator of the Mine. As against Vedanta, the same causes of
action are said to arise by reason…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lungowe v Vedanta Resources plc

Details

AGLC: Lungowe v Vedanta Resources plc [2019] UKSC 20
Case: [2019] UKSC 20
Decision Date

CaseChat Overview and Summary

This case involved an appeal against a decision that allowed claims to proceed in England against Vedanta Resources plc and Konkola Copper Mines plc in relation to alleged environmental damage caused by the Nchanga Copper Mine in Zambia. The claimants, residents of communities near the mine, alleged that both companies were responsible for toxic emissions into watercourses that harmed their health and livelihoods. The defendants argued that the English courts lacked jurisdiction to hear the case, contending that the claimants were abusing EU law by suing Vedanta to gain access to the English courts against KCM, and that the claims against Vedanta did not disclose a real issue to be tried. The Supreme Court dismissed the appeal, affirming that the claims could proceed in England.

The court found that the claimants had not abused EU law by suing Vedanta in England. While the prospect of attracting English jurisdiction against KCM was a significant reason for suing Vedanta, it was not the sole reason. The claimants had a genuine desire to obtain damages from Vedanta and were concerned that KCM might be insolvent. The court concluded that the claimants' motivation did not amount to an abuse of EU law, as the claimants had a real triable issue against Vedanta.

The court also rejected the argument that the claims against Vedanta did not disclose a real issue to be tried. The claimants alleged that Vedanta had a sufficiently high level of control over the mine's operations to incur a duty of care under Zambian law. The court found that the evidence was sufficient to show that the claims against Vedanta were arguable and should not be dismissed at the summary judgment stage.

While the court found that Zambia would otherwise be the proper place to hear the claims, it concluded that there was a real risk that the claimants would not obtain substantial justice in Zambia. The court found that the claimants had a real prospect of success against KCM, and given the risk of non-payment, it was appropriate to allow the claims to proceed in England.

Ultimately, the court dismissed the appeal on the basis that the claimants had satisfied the requirement that there was a real risk they would not obtain substantial justice in Zambia. The claims against both defendants were therefore allowed to proceed in the English courts.

Orders