Vilca & 21 Ors v Xstrata Ltd & Anor

I handed down a judgment on 29 February concerning the disclosure issues raised by the parties at a hearing that had taken place the previous week: [2016] EWHC 389 (QB). I asked Counsel to agree a form of order giving effect to the decisions contained in the judgment [108]. A substantial measure of agreement was achieved, but six issues have been raised with me.

I have received written submissions from both sides on those issues.

This relates to what were termed “keywords” in the judgment: see [54]-[57]. The obligation imposed on D2 by the judgment was to search its back-up tapes for exchange (i.e. e-mail) servers during “the Relevant Period” and to give disclosure by list (with certain agreed exceptions), the search to include as search terms of (i) “hormigas” and (ii) “HA” within five words of either “equipo” or “activ*”.

C now wish to add the requirement to include “search terms of any other code words or acronyms in use within [D2] between 1 April and 31 August 2012 to refer to other participants in, or events or anticipated events forming part of, the protests and/or in the response to the protests.”

This was not a matter ventilated at the hearing and has arisen subsequently in the following manner. As a result of continuing inquiries conducted by Cs’ solicitors, it emerged over the weekend between the hearing and the hand down of the judgment on 29 February from someone who wishes to remain anonymous that code words were used by those involved on behalf of D2 during the response to the protests. Examples the source gave (in addition to “Hormigas” dealt with in the judgment) were “Lima lima” for Mr Llanque (see [55]), “Alcon” for Mr Hector Chavez (Supervisor for Internal Protection and Emergencies) and “Garra” for Colonel Rodriguez (Peruvian Police). He also explained the meaning of “Alaska Project”, an expression noted in certain disclosed documents. It was the name, he explained, given to the emergency centre that provided logistical support during the protests. The source suggested that there were “many code words used”, but he could not remember them all.

It was not raised with me (or D2’s advisers) until after the hand down of the judgment for reasons explained in Mr Béar’s Submissions on the Draft Order. It is unfortunate when things occur in this way, but I accept that, had the matter been mentioned on the day of the hand down, it would not have been resolved that day. The request for the additional wording prompted an objection from D2’s solicitors on the basis that it was something that arose after the CMC and the hand down, but they undertook to ask Mr Llanque in any event if any code words or acronyms were in use at the time. Apparently, Mr Llanque has confirmed to that the nicknames/code words mentioned above “were employed only for radio communications to ensure the secrecy of oral communications by radio, which might be overheard or intercepted.” It was contended by D2’s solicitors that it would not be reasonable in the circumstances to add those terms as search terms.

Mr Llanque and others also have confirmed that “Alaska” is the name for both the system at the mine for recording the entry of visitors to the mine and their departure and the title given to the procedure for the first point of contact and initial response to any emergency at the mine. It was not, it is said, specific to the disturbances that lie behind this case. Nonetheless, D2’s solicitors have requested a search over D2’s electronic data for the term “Alaska”. I do not believe I have been told the outcome of that.

I agree with the argument advanced by C that what Mr Llanque says concerning the limiting of the use of these code words to use in radio communications is merely assertion which may or may not prove correct. At this stage in the process it is reasonable to approach information from him with caution. If he is right, the words will not be in e-mails; if he is wrong, then that also will be revealed. For my part, I cannot see any principled objection to adding to the search terms the words identified; I cannot see that it would add greatly to the task, but since it might generate information about D2’s involvement in how the response by the police to the disturbances was handled, it is arguably a relevant line of inquiry. The only question, as it seems to me, is whether the order should be confined to the identified terms or whether it should be as proposed by C. Mr Béar says that C have proposed a residual category of “any other code words in use” at the time because any such words would be peculiarly within D2’s knowledge and it is not necessarily the case that a single witness would know, or could now recall, all such code words. On balance, I agree that the wider form of order is appropriate and consistent with the general disclosure obligation.

The IT experts were to meet to try to agree a methodology for searching and identifying relevant folders within D2’s file servers. This arose from [43]-[49] of the judgment.

C wish to add a requirement to that general provision that at least 2 days in advance of the meeting D2 should provide (a) a schedule of the backups including (i) the date created, (ii) the systems covered by the backup, (iii) the data size of each backup, (iv) the specific identity and description of data (if any) that has been recovered from that backup and searched already and (v) whether the backup is full or incremental and (b) the directory trees of the file servers. D2 rejects the need for this.

Unfortunately, my commitments in the meantime have prevented me from dealing with the various written submissions dated 14 March until some 6 weeks later and I do not know whether further progress has been made on this aspect. Mr Béar’s Submissions dated 14 March say that his team had not had an opportunity to consider the contents of a letter from D2’s solicitors dated 11 March with their IT expert. I have to assume that no meeting has taken place and no further progress has been made. I did say that I would only become further involved in this issue if the experts could not agree a way forward after such a meeting had taken place. It is disappointing that I find myself involved at an earlier stage.

However, doing my best to understand the current state of play between the parties, C say that their IT expert advises that it is necessary to have all this information in a single schedule, with confirmation that it is correct on D2’s expert’s current advice to “ensure that the outstanding matters can be dealt with in a cost-efficient and proportionate manner, rather than having to cross-refer back through extensive correspondence.” I understand that C accept that D2 has “provided some, but not all, of this information in a piecemeal fashion over a long period of time”, but what is sought is “this information in a coherent, unified format”.

It is said that size of each of the backups is important since it gives an indication as to whether the backup was likely to have been successful or not (since a considerably smaller backup than the previous or subsequent one, is likely to have an element of failure). D2 draws attention to Cs’ letter dated 4 March (which was on this theme) where Cs’ solicitors set out three conditions by reference to which the ten identified potential backups might be reviewed to determine which might be suitable candidates for the exercise. Those conditions were that the backup that should be subjected to the relevant interrogation process should be (i) a full and complete backup of the entire server, (ii) in adequate condition and (iii) covering the full Relevant Period. The letter indicated –

“We are willing to agree to the search of a reduced number of backups per file server provided that such a backup is a full (non-iterative) and complete backup of the entire server, which is in adequate condition and covering the full relevant period.”

In a letter dated 4 March D2 indicated that only two backups would satisfy condition: the September Lima Backup and the backup for Antapaccay dated 25 August 2012 (“the August Antapaccay Backup”). D2 proposed that these two backups be interrogated.

If I understand Cs’ position, it is that if the September Lima Backup measures up to the requirements set out in their proposed form of words above then they would be content with a search of that, but they are of the view that the August Antapaccay Backup “has a significant risk of being incomplete since at least one backup tape is missing and it will exclude all data created for a week of the relevant period.” I have to say that the fact that one week at the end of the relevant period may be missing is hardly a reason for rejecting the proposed exercise: it is much more likely that, if anything of value to the claimants’ case is to emerge from this process, it will be in the earlier stages.

I do not think that I have any alternative, on the basis of the present material, but to direct that the September Lima Backup and the August Antapaccay Backup be investigated as proposed, with permission to C to apply to me for further disclosure if this proves inadequate. The logjam in the case must be dislodged and this seems the only way forward at the moment.

C wish to add Mr Charles Sartain as a custodian because, as a former director of D2 during the relevant period, this is his proper status. D2 objects on the basis that D2 do not have control over the documents of Mr Sartain.

My recollection is that this issue was to be left over to be determined as, in effect, part of the “control issue” argument if that argument was necessary in the light of Glencore’s overall position concerning that issue, both in relation to certain individuals and in relation to Mr Sartain’s documents other than e-mails [102]. Unless I have misunderstood the material placed before me, the final news on that issue is still awaited.

In relation to the wording of paragraph 7 of the draft order I do not think that the use of the words “and indeed more generally” in [82] of the judgment was other than a shorthand way of referring to the individuals other than Mr Sartain referred to in paragraph 7. I do not consider that the additional words proposed by C should be included. I would merely observe that the attitude of Glencore to the position in relation to all four individuals (including Mr Sartain) is likely to give an indication of its general view on this issue in any event.

There was a requirement that D2 would search for hard copy documents at various locations including all administrative or other non-mining buildings inside the Tintaya mine compound “including guard posts in which there is a reasonable prospect of there being relevant stored paperwork” and give disclosure of any relevant documents found. C wish to add the following words after the words “guard posts” – “and places used for (i) detention of the Claimants, (ii) communication and coordination of response to the protests, and (iii) control posts”.

D resists this resist because it is said that these places have already been searched and no discloseable documents have been found.

It seems to me that, in the circumstances of this case, C are entitled to see signed witness statements to which a statement of truth is attached by those who carried out the searches, specifying where the searches were undertaken and what parts of the premises were searched (and when). That leaves open the need for some further order as to disclosure if the witness statements are unsatisfactory. I am certainly not inviting that, but the option remains open.

I understand this to have been resolved, but if not I agree with D2’s proposed wording of paragraph 11(c) of the draft order, namely, that the words “and requires to be disclosed in compliance with CPR 31.6” should be descriptive of the documentation to be disclosed

At the conclusion of the hearing when I handed down the judgment, following oral submissions from Mr Béar and Ms Fatima, I ordered that the costs of the applications I heard should be costs in the case, commenting, as I recall, that “no injustice would be done” by such an order. C invites me to review that decision (because the order has not been perfected) and to order D2 to pay 2/3rds of the Claimants’ costs incurred relating to the Claimants’ Applications dated 8 and 19 February 2016 in any event. Various authorities have been referred to.

I can, of course, review the decision if I think, on reflection, it was unjust or any of the other factors referred to in L-B [2013] 1 WLR 634 arise. What is said is that “plainly relevant” considerations concerning costs mentioned in R(M) v. Croydon London Borough Council [2012] 1 WLR 2607 were not take into account because it was not drawn to my attention. That part of the judgment of Lord Neuberger MR, as he then was, which says as follows was drawn to my attention in the written submissions:

“… it is simply unfair on the claimant or his lawyers if, at least, in the absence of special factors, he does not recover the costs of bringing wholly successful proceedings, provided that they have been properly brought and conducted.”

I do not think anyone would read the judgment as indicating that C were “wholly successful” in their applications. They won on some issues and were unsuccessful on others – and some were left over for further resolution. That is partly reflected in the suggestion made at the hearing that I should award C less than the whole of their costs of the application. However, I took the view, on the brief arguments advanced (as matters concerning costs are frequently argued at the end of such a hearing), that costs in the case was fair.

I see no reason to alter that assessment. I accept that I do not have to be persuaded that exceptional circumstances arise before reviewing such a decision, but the work of the courts would soon grind to a halt if after every such order a party has second thoughts and attempts a second bite at the cherry. I adhere to the view I formed originally given my “feel” for how the proceedings had resulted immediately at their conclusion.

I have noted that D2 still wants an early trial, reference still being made to the Autumn. Plainly, I do not shut out any possibility at the moment, but it must be obvious that there are still issues to be resolved before this case can be listed for trial.