Is Zambia exporting access to justice to England?

‘There must come a time when access to justice in this type of case will not be achieved by exporting cases [out of Zambia] …’ that was the conclusion of the Court of Appeal of England and Wales in a case between Zambian claimants and an English mining company.

The comments arose in answer to the question whether England was the proper place to access justice for 1,826 Zambian claimants suing Vedanta for alleged breaches committed in Zambia. Vedanta is an English company with a mine operated by its Zambian subsidiary, KCM. The claimants allege that due to pollution and environmental damage caused by discharges from Vedanta and KCM’s mine in Zambia, they had suffered personal injury, damage to property and loss of income, and enjoyment of their land. The Court of Appeal decided that England was the proper place to try the claim giving seven reasons why there was a real risk that substantial justice could not be obtained in Zambia:

  1. The claimants earned considerably below the national average in Zambia and the vast majority of them would not be able to afford the cost of any legal representation;
  2. The only way in which the claimants could bring the present claims in Zambia would be by a Conditional Fee Agreement (CFA). However, CFAs were not available in Zambia and were unlawful;
  3. There was no prospect of the claimants obtaining legal aid from the Zambian state: the Legal Aid Board would not be able to provide funding for a large environmental claim on behalf of 1,800 claimants;
  4. The prospect of ad hoc litigation funding was entirely unrealistic and it was ‘fanciful’ to suggest that the claims could be funded by Zambian lawyers on such a basis;
  5. No private lawyers with relevant experience were willing and capable of taking on such claims in Zambia;
  6. Previous environmental litigation in Zambia had failed in respect of some or all of the claimants for various reasons;
  7. KCM’s likely ‘obdurate’ approach to litigation in Zambia would add enormously to the time and therefore the cost of bringing the claim in Zambia. KCM had in the past pursued ‘an avowed policy of delaying so as to avoid making due payments’.

The seven reasons given by the Court of Appeal are a sad indictment of access to justice for Zambia’s poorest.

Whilst the UK courts were quick to point out that their analysis was not a criticism of Zambia’s justice system, it is concerning that 1,826 of Zambia’s poorest and marginalised citizens feel compelled to rely on English lawyers and courts to access justice.

From a common law angle, given the significance of this case in relation to the potential for a duty of care to be owed by parent companies for the actions of subsidiaries, it will be interesting to see whether Zambian courts apply not only that principle but also endorse the Court’s decision in relation to access to justice in the country.

However, it should be noted that these claims arise in the first place because an English company could set up overseas subsidiaries which allegedly enable it to abrogate from basic duties of care which it would not get away with in the UK.

Whilst it is laudable that the Court of Appeal’s decision to try the claim in England may open the door to justice for the claimants, an alternative for the future would be for English law to legislate against such breaches in the first place—wherever they take place.

This blog will continue to monitor the progress of Lungowe through the English courts.

Case reference: Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528

 


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