Vilca & Ors v Xstrata Ltd & Anor

I held a further case management conference in this case on 31 October 2016. Judgments or rulings given on previous occasions can be found at [2016] EWHC 389 (QB), [2016] EWHC 946 (QB) and [2016] EWHC 1824 (QB).

The last of the above-mentioned rulings concerned the Claimants’ application for a re-review of the disclosure exercise. That aspect has been dealt with satisfactorily in accordance with that ruling. However, a further issue (i.e. in addition to the matter dealt with in my last ruling) has been raised about whether the disclosure exercise conducted by the Defendants’ solicitors has been carried out properly. Some questions are to be raised by the Claimants’ solicitors which will be answered by the Defendants’ solicitors shortly. The Claimants have reserved their position as to whether they might make a further application concerning disclosure. I will say nothing more about this issue at present and I propose to proceed, for present purposes, on the basis that there will be no disruption of the timetable towards the trial referred to below.

So far as the trial is concerned, the parties are agreed that it should take place in 2017, the Claimants expressing a preference for a trial window from 30 June to 31 July, the time estimate being 15 days. The Defendants have expressed a preference for the Michaelmas term.

Purely from the point of view of the efficient deployment of judicial resources, my preference, as Judge in Charge of the Queen’s Bench Civil List, is not to list a substantial trial of the nature involved here (involving, as it may do, witnesses from Peru giving evidence via video link) during effectively the last few weeks of the Summer Term. It is better from the court’s point of view to list such a trial in the Michaelmas Term. I have indicated that to the parties and they should liaise with each other (and with the QB Listing Office) over a suitable window for the trial in the Michaelmas Term.

There are one or two relatively minor, timing matters that will probably fall into place now that the period when the trial will take place has been determined. I will invite the parties to try to agree a timetable in the light of this ruling. If it cannot be agreed I will have to decide on the issues.

The most significant issue to be considered at the present stage is whether the Claimants should have permission to rely upon the evidence of Mr Bennett Freeman as an expert witness in relation to the Voluntary Principles on Security and Human Rights (‘the VPs’).

In a letter to Leigh Day dated 21 October 2016, Mr Freeman describes his personal background in the following terms:

“Over the last 15-plus years I have worked at the intersection of governments, international institutions, multinational companies, investors and NGOs to improve corporate conduct and to promote human rights and sustainable development.

As Deputy Assistant Secretary, Democracy, Human Rights and Labor at the US Department of State between April 1999 and January 2001, I was instrumental in the State Department/British Foreign Office initiative that forged the [VPs].

While I have not had a formal role with the [VPs] since early 2001, I published a number of articles and case studies focusing on their origins and development, and consulted with several major companies on their implementation over the first five years after their launch.

Over the last 10 years, I have provided informal counsel to governments, companies and NGOs involved in the process and continue to follow the process closely. I am currently a member of the boards of several NGOs in the human rights field, including Chair of the Advisory Board of Global Witness.”

There is not, I apprehend, any dispute about the approach to the question of whether reliance can be placed on Mr Freeman’s evidence as expert evidence. The starting point is CPR 35.1 which provides that “[expert] evidence shall be restricted to that which is reasonably required to resolve the proceedings”. CPR 35.4(1) provides that “no party may call an expert or put in evidence an expert’s report without the Court’s permission.” CPR 35.4(2)(a) requires a party who seeks permission to rely upon an expert witness to identify “the field in which expert evidence is required and the issues which the expert evidence will address”. I will return below to the way these matters are addressed by the court.

Mr Harry Steinberg QC, standing in for Mr Charles Béar QC on this occasion, submitted that the evidence that could be adduced through Mr Freeman would be “relevant to the Court’s consideration of what amounted to good practice – in relation to security and human rights – in the extractive industries at the time and the extent to which this was shaped or reflected by the VPs.” The contention is that –

“… these matters need to be considered in context; i.e. what was the purpose and effect of the VPs? How where they generally understood by signatories and others in the industry? Such questions are directly relevant to the standard of care required of the Defendants under both UK law and Peruvian law.”

That summation does reflect broadly the way in which the VPs are relied upon in the proposed Re-Amended Particulars of Claim and the assertion is made in that pleading that the alleged failure of the Second Defendant to “restrain or influence the PNP against the use of excessive force and the infliction of serious violations of human rights” represented a falling below the standard of care set by the VPs.

In his letter to Leigh Day Mr Freeman has identified five areas where he says he could assist the court:

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The origins and rationale of the [VPs], and subsequent developments;

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The status of the [VPs] as a global standard in the oil and mining industry;

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Human Rights Impact Assessments (“HRIAs”): purpose, industry and good practice as at 2012;

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Post-2000 examples of instances where human rights violations were perpetrated against protesters by public security forces whilst protecting mines owned by companies that had not adopted the [VPs]; and

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Evidence on what steps could reasonably have been taken by Xstrata under the [VPs], consistently with good industry practice to diminish the risk of harm being caused to the protestors by the Peruvian police in May 2012.

Mr Steinberg recognised (as indeed is tolerably plain from a reading of the VPs) that the principles established by the VPs are set at “a high level” and simply offer broad operational guidance to corporate entities involved in mining operations. He said that the Defendants’ submissions suggest that the VPs represent “aspirations” rather than, as he contends, “industry standards”. Their precise status will be a matter for the trial judge, but the description I gave them in my first judgment (at [12]) is sufficient for present purposes:

“… the [VPs] … is a set of principles designed to guide companies in maintaining the safety and security of their operations within an operating framework that encourages respect for human rights, have been adopted by many mining companies over the years including Xstrata. The principles have the backing of the United Nations.”

Mr Steinberg submits that Mr Freeman’s evidence could assist the court in determining the purpose and effect of the VPs and in determining what “could and should” have been done to secure compliance with them in this instance. He emphasises Mr Freeman’s role as one of the principal architects of the VPs and his “key role” in developing standards.

Ms Fatima QC contends, however, that the proposed evidence falls at the first hurdle in that it cannot properly be characterised as “expert” evidence. She does not, of course, challenge Mr Freeman’s overall experience and doubtless distinguished service in the formulation of the VPs, but submits that, on proper analysis, it does not meet the accepted description of expert evidence. Her starting point is what Evans Lombe J said in Barings Plc v Coopers & Lybrand [2001] PNLR 22, where an application was made by one party to strike out parts of certain expert reports as inadmissible. Having reviewed a number of authorities, Evans Lombe J said this at [45]:

“…expert evidence is admissible under section 3 of the Civil Evidence Act 1972 where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court’s decision on any of the issues which it has to decide and the witness to be called satisfies the Court that that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the Court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the Court is able to come to a fully informed decision without hearing such evidence.”

She submits, in the first instance, that this is not a situation in which there is “a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court’s decision”, her initial emphasis being upon the contention that there are no “recognised standards and rules of conduct”. As I understood the way this initial contention was advanced, weight was placed upon there being no “rules of conduct” set by, for example, a regulatory body.

Although Evans Lombe J formulated his summary of the effect of the authorities in the way he did in [45], it is clear that, as he said in [47], the area in which the contested evidence fell to be considered in the Barings case was one which was “highly regulated” by a regulator. At [25], having referred to the decision of Oliver J in Midland Bank Trust Company Ltd and Anor v. Hett Stubbs & Kemp [1979] 1 Ch. 384, he said this:

“It seems to me to be clear that by this passage in his judgment Oliver J. was not confining expert evidence to evidence directed to the rules and practices of “professional institutes”. The relevant words are “some accepted standard of conduct which is … sanctioned by common usage …”.”

This is the situation that needs to be addressed in the present case. With some diffidence, I would respectfully suggest that if Evans Lombe J had used the expression “and/or” instead of the word “and” in the phrase “recognised standards and rules of conduct”, the effect of the previous authorities may have been more accurately summarised.

At all events, the question in the present case is whether there is a recognised standard of conduct for dealing with the kind of demonstration that occurred to be deduced from the VPs. Ms Fatima is, it seems to me, on stronger ground when submitting that the issue to be addressed is very similar to that addressed by Andrews J in Kesabo v African Barrick Gold [2014] EWHC 4067 (QB). In that case the claimants were pursuing claims for damages arising from injuries or deaths that occurred in or around a gold mine in Tanzania sustained, it was alleged, as a result of the use of unlawful and/or excessive force by private security forces and/or police at a mine operated by the defendants. One of the experts sought to be relied upon by the claimants was a Mr Warner who was said to be an expert on “mining community engagement in situations of conflict.” But Andrews J said that this was “not an expert discipline which falls within the category recognised in Bonython as part of a body of knowledge or expertise which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.” Her reference to Bonython was to an Australian criminal case called R v Bonython (1984) SASR 45, where Chief Justice King at 46 said:

"Before admitting the opinion of a witness into evidence as expert testimony, the Judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which of the witness would render his opinion of assistance to the Court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the Court."

Andrews J added this in respect of Mr Warner:

“If and in so far as any evidence that Mr. Warner is able to give could be relevant to the issues that have to be decided in this case, it would appear that it would derive from his knowledge of what, as a matter of fact, other mining companies may or may not do, and what standards they apply, in trying to deal with the problem of people coming on to their land as trespassers, and how they police matters. However that would be purely factual evidence and is not a matter of expertise.”

The other expert sought to be relied upon in Kesabo was a Mr White who had, it was said, “significant operational command and planning experience in the area of policing of protest and public order.”

One reason given by Andrews J for rejecting the application to admit “expert” evidence from this source was expressed as follows:

“There is nothing before the court today in terms of evidence that suggests that a body of recognised opinion exists as to what are the appropriate steps to be taken in terms of policing a mine or dealing with public order issues arising in consequence of people trespassing in or near a mine. Thus there is no objectively ascertainable standard or consensus against which to judge the defendants’ behaviour.”

Ms Fatima says that the same applies here. I agree. There may, one supposes, be an emerging consensus about what represents good practice in the kind of situation that arose in this case, but it would be impossible, certainly on the available evidence, to conclude that there was an established consensus.

Although Ms Fatima drew attention to what she asserted were deficiencies in Mr Freeman’s recent experience of the VPs, I would not myself have regarded that as a reason for rejecting the present application. Those would be matters that went to the weight to be given to his evidence if given.

To my mind the considerations referred to in paragraphs 18-22 above are sufficient to dispose of this application. However, I would add the following to that conclusion. Mr Steinberg says that, whilst the evidence of Mr Freeman may not, strictly speaking, be “necessary” for the court to reach a conclusion on the issues before it (see British Airways Plc v Spencer [2015] EWHC 2477 (Ch) per Warren J at [63]), it would “provide substantial assistance to the Court at trial.” He cites two questions which, he says, could more readily be answered with the assistance of expert evidence in relation to “what steps could reasonably have been taken by the Defendants under the VPs, consistent with industry good practice, to diminish the risk of harm to the protestors.” Those questions are “what specific steps should the Defendants reasonably have taken, or tried to take, pursuant to the VPs” and “if taken, would these steps have had any causative effect?”

I am bound to say that, whatever effect the VPs do or should have in this context, they are clearly articulated and do not appear to be ambiguous in any material fashion. This means that the trial judge ought to be able to measure what was done or not done by reference to some clearly articulated principles without the need for expert assistance. Ms Fatima submits that it is for the Court to decide whether the Defendants followed the guidance in the VPs and, if so to what degree, and if they did not, whether it amounts to a breach of duty under English or Peruvian law. It is not an issue for expert evidence. Again, I agree, and I think the way Andrews J expressed herself in Kesabo about Mr White’s evidence has a resonance here:

“An experienced trial judge is well able to determine questions of negligence against the appropriate matrix without the assistance of somebody coming in and saying what they would have done in a similar situation, or expressing a view as to whether what the Defendants actually did was reasonable, in the light of their own experience in similar (or different) situations, which appears to be the high water-mark of what one would be able to get from Mr. White. This is just the sort of evidence that Mance J ruled to be inadmissible in The Ardent. Thus the subject-matter of Mr White’s putative opinion, so far as it is possible to discern anything about it, does not appear to be something on which expert evidence is permissible.”

For those reasons, I reject the application for the Claimants to rely upon Mr Freeman as an expert witness. I do not say that he may not have relevant factual evidence to give about the genesis of the VPs, but that is a different matter.

The Claimants seek permission to re-amend the Particulars of Claim. A draft has been prepared and was sent to the Defendants’ solicitors on 25 October. It was in draft form because the disclosure process is not quite complete and it is said that the Claimants may seek to make additional amendments on review of the outstanding disclosure although it is anticipated that any further changes will be minor.

The Defendants say that it is premature to grant permission until the final form of the re-amendments is known. Ms Fatima did, however, concede that there was nothing in the present draft to which a principled objection could be taken as an amendment.

In those circumstances, I propose to grant permission to re-amend the Particulars of Claim in accordance with the current draft, such permission not to take effect until any further proposed changes to that draft have been communicated to the Defendants. Unless the Defendants object to any of the further amendments, if made, within 7 days of receiving them, permission to amend in respect of the whole re-amended Particulars of Claim is granted. If objection is taken, the objection should be communicated to me in writing (with reasons for the objection) to which the Claimants must respond within 7 days and I will decide on the issue on the basis of written submissions.

The Defendants wish to include a provision within the directions that enables both parties to lodge and serve witness statements in reply to the statements of the witnesses of fact lodged and served by the opposing party.

The Claimants object to that proposal on the basis that they do not consider it necessary or desirable. It is suggested that it would add an additional complication at the trial, with multiple statements being served by witnesses, and, perhaps more pertinently, it could present practical difficulties for the Claimants, many of whom live in remote areas of rural Peru. Mr Steinberg suggested that an imbalance in the presentation of each side’s case might arise if I was to make an order to this effect, certainly at this stage.

I do not think that I should decide on this issue at this stage. It seems to be a matter which, if it is not agreed, is best addressed at a further case management hearing or pre-trial review undertaken by the trial judge once all the witness statements of the witnesses of fact have been served. The Defendant’s application can be adjourned for consideration at that stage

I trust that this ruling will be sufficient for the parties to agree an order giving effect to it.

If there is no further application concerning disclosure, there is no reason for the progress to trial being interrupted. However, I will await further information concerning that issue.

I will want to hear the parties’ proposals for when the costs-budgeting hearing should take place and I should like to receive their proposed directions in order to be prepared for the hearing when it takes place. I should be grateful if a common approach to directions for costs budgeting and to the completion of Precedent H could be agreed. If agreement cannot be reached the parties should identify the areas of disagreement before the hearing and build into the time estimate sufficient time for determination by the court of any issues of principle before the cost budgeting exercise is carried out.