Ruling that Zambians can sue over alleged pollution shows overseas human rights practices must conform to the highest standards.

The recent judgment in Lungowe and Ors v Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 ruled that nearly 2,000 Zambians can sue the metals and mining company Vedanta Resources over the alleged pollution of their village’s water supply in the resource-rich Chingola region of the Copperbelt Province.

This decision is hugely significant and could well open the floodgates for more cases to be brought against UK domiciled companies in relation to their human rights practices overseas. The judgment also looked at the validity of England as a forum for litigation in disputes involving foreign domiciled subsidiaries – even if their parent company is UK-based. This is a case which all businesses with foreign operations should pay careful attention to.

The details

Founded in India in the 1970s, Vedanta Resources describes itself as a ‘London Stock Exchange listed, globally diversified natural resources company with interests in zinc, lead, silver, copper, iron ore, aluminum, power and oil & gas’. The company operates through a network of subsidiaries across four continents. It has 19 employees employed directly, with 82,000 people employed worldwide through subsidiary companies and in Zambia; its subsidiary is Konkola Copper Mines (KCM), of which it owns a 79.42% share.

KCM is one of Zambia’s largest employers and it currently produces around 2 million tons of copper ore annually, operating a number of mines. One of these mines, Nchanga, was the subject of a claim in 2015 from Zambian residents living in four local villages. The 1,826 villagers claimed they had suffered personal injury, damage to property and loss of income, amenity and enjoyment of land due to alleged pollution and environmental damage caused by discharges from the Nchanga copper mine since 2005. As KCM’s parent company is UK domiciled, it was argued that these claims should be heard in the English courts. However, Vedanta and KCM challenged this, arguing that, as the claimants were Zambian and the alleged damages occurred in Zambia, the claim should be heard there.

The judgment

The court unanimously dismissed Vedanta and KCM’s appeals, ruling in favour of the local Zambian people.

There were a number of elements behind the court’s decision to rule that this case should be heard in English courts. The judge posed what he called two relevant questions – first, whether England and Wales was the appropriate place to try the claimants’ claims against KCM; and if not, second, whether the claimants would get access to justice in Zambia.

He concluded that if the claim did not involve Vedanta, it was ‘plain and obvious that England is not the appropriate forum for these claims and that Zambia is obviously the appropriate forum …’ However, given Vedanta is the UK domiciled parent company, England is the most appropriate place to try the claims against KCM. He also noted that the claimants would ‘almost certainly not get access to justice if these claims were pursued in Zambia’. On this point, the judgment details that as Zambia is such a poor country, the claimants would struggle to get appropriate legal representation, with conditional fee agreements generally not available. It was also noted that private lawyers in Zambia lacked the right experience to take on a case of this scale and complexity.

The claimants had argued that article 4 of the Recast Brussels Regulation, as applied in the decision of the European Court of Justice in Owusu v Jackson (case c-281/02) [2005] QB 801 provided a ‘clear and unqualified right to sue Vedanta in this jurisdiction’. Vedanta argued that Owusu v Jackson turned on its own facts and should not be taken asapplicable case law. However, in response to this, Lady Hale rejected this argument and concluded that ‘Vedanta is seeking to argue points that are no longer open to EU domiciled defendants’.

Human Rights considerations

This judgment sends a clear signal to any European company with operations elsewhere that, where they are looking to gain, and make profit, from opportunities in emerging markets, they also have responsibilities. For businesses choosing to operate in jurisdictions that do not have a developed sense of the importance of human rights and environmental protection they will still be bound by European law. In this case, which involved a ‘toxic’ combination of a reckless attitude to both people and the environment, even though Zambia is not a European country, the judges made it quite clear that KCM would still be bound by European standards.

This is not a ‘colonial’ issue of asserting Europe’s legal superiority. Rather, it is about calling to account European businesses happy to profit from opportunities far from home, which are trying to duck their responsibilities and work to far lower standards than they would ever get away with on their home turf. And quite right too.

This article was originally published by the Law Society Gazette on 7 December 2017 and can be viewed here.

Gemma Lindfield is a criminal, public law and family barrister with a particular focus on human rights. Gemma is also regularly instructed in extradition, gender violence and domestic abuse cases.