‘Injustice anywhere is a threat to justice everywhere’ reads an inscription in the Library of the UK Supreme Court. On 15 and 16 January, these words will be put to the test as the Supreme Court hears its first case of 2019 – Vedanta Resources PLC v Lungowe. The case has been covered extensively on this blog and concerns a claim by 1826 Zambian claimants against Vedanta Resources PLC, a UK-domiciled company and KCM, Vedanta’s Zambian subsidiary. The issue for present purposes is whether the UK is the proper place to bring this claim given the alleged breaches took place in Zambia.
To determine this, the Supreme Court will assess:
- The proper approach to be applied where a claimant seeks to sue a foreign subsidiary and a UK-domiciled parent company.
- The weight to be given to the prospect of parallel foreign proceedings in Zambia against the prejudice caused to KCM in defending the claims in England and Wales.
- The proper approach when determining whether there is a real risk that the claimants cannot obtain substantial justice in Zambia.
- The proper application of EU law principles and cases to the present claim.
- Whether to refer point (4) above to the EU Court of Justice.
Whether there is a real risk that the claimants cannot obtain substantial justice in Zambia
Of particular relevance to this blog is the question of what approach the court should take to the issue that that there is a real risk that the claimants cannot obtain substantial justice in Zambia. At the Court of Appeal stage of the hearing, the Court highlighted a number of access to justice challenges that the claimants face in Zambia. Given that many of these challenges still persist, it will be interesting to see how the Supreme Court approaches the issue.
It is also worth mentioning that waiting in the wings of the Supreme Court decision in Vedanta v Lungowe is the similarly important case of Okpabi v Shell, a case which may also go to the Supreme Court depending on the decision in Vedanta v Lungowe. Also covered on this blog is the more recent case Kalma and others v African Minerals Ltd while the even more recent case of AAA v Unilever Plc is available here:  EWCA CIV 1532.
In AAA v Unilever Plc, 218 claimants brought a claim against Unilever, a UK parent company and its Kenyan subsidiary, UTKL for breach of a duty of care due to the violence they suffered at UTKL’s tea plantation in Kenya. The Court of Appeal, upholding the decision of the earlier court, held that the claimants were ‘nowhere near being able to show that they had a good arguable claim against Unilever.’ Leaving aside the important considerations relating to proximity, this case is distinguishable from Vedanta and Okpabi from an access to justice perspective insofar as no arguments were raised relating to difficulties with access to justice in Kenya. As there was no anchor defendant for proceedings in England, the Court of Appeal found it far better to ‘leave issues of foreseeability and what was fair, just and reasonable’ to Kenyan courts ‘which are obviously more familiar with Kenyan society’.
Underlying the Supreme Court hearing this week is the wider issue of access to justice in claims against multinational companies. This is pertinent in this case given that since the last Court of Appeal hearing, Vedanta Resources has voted to leave the UK meaning that should its Zambian subsidiary commit further breaches, UK courts will have no jurisdiction to hold Vedanta to account. As such, while the Supreme Court hearing is a milestone in parent company liability, its effect is limited to UK-domiciled companies.
What then of the mantra that injustice anywhere is a threat to justice everywhere? Vedanta’s relocation from the UK demonstrates that without international cooperation multinational entities with subsidiaries in countries with weak justice systems will continue to be unaccountable. This is concerning for victims seeking justice for human rights breaches. Either way, the Supreme Court hearing presents an opportunity for hitherto unheard victims to make their case before the common law’s foremost Court.