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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2475 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MARIO ALBERTO TABRA GUERRERO
|- and -
|MONTERRICO METALS PLC
|RIO BLANCO COPPER SA
(instructed by Leigh Day & Co) for the Claimants
Stephen Phillips Esq, QC and David Simpson Esq
(instructed by Lawrence Graham LLP) for the Defendants
Hearing dates: 8th and 9th July 2009;
Further written submissions: 24th July 2009 and 27th July 2009
Crown Copyright ©
Mrs Justice Gloster, DBE:
Summary of the Claimants' pleaded claim in the action
"4A Basis of Liability
50. The First Defendant's liability to the Claimants' herein arises (notwithstanding that the mine was owned by the Second Defendant) in both English and Peruvian law, on the basis of:
a. The direct participation of its personnel, in particular Mr. Eager and Mr. Angus in the running of the mine generally and specifically in the events particularised above
b. The specific responsibility for risk management retained by the First Defendant in respect of the operation and management of the Second Defendant. The Claimant relies not least upon the fact that Risk management policies were expressly reserved to the First Defendant's Board of Directors as stated in the First Defendants' Annual Reports of 2003, 2004 and 2005.
c. The fact that the First Defendant exercised effective control over the management of the Second Defendant;
d. That the two Defendants operated in fact as one body.
51. The liability of both Defendants for intentional acts particularised herein is set out below. The liability of both Defendants for omissions arises not least in the context of their knowledge as to the risk of violence to which environmental protestors could be exposed both generally within the extractive industry in Peru and specifically in respect of the Rio Blanco mining project. In construing the Defendants' knowledge as to the serious risk of violence, ill-treatment and human rights abuses arising from the police's response to the protest planned for late July/early August 2005, the Claimants rely not least upon the following facts and matters:
a. The risk of ill-treatment and human rights abuses by police forces and private security firms against civilians protesting against the activities of extractive industries is well-known, for example it has led to the creation of the Voluntary Principles on Security and Human Rights in December 2000 of which the Defendants would have been well aware.
b. There was a history of conflicts in Peru in response to activities of companies working in the extractives sector.
c. In 2005 the Peruvian Ombudsman's Office recorded 30 separate conflicts relating to mining.
d. In 2005 the World Bank noted that at least 15 mining zones in Peru were affected by conflicts.
e. The Piura region had experienced conflicts in relation to proposed mining activities in the recent past. Between 1998 and 2003 there had been a conflict in Tambogrande between the Manhattan Minerals Corporation and the local community which resulted in the company withdrawing from Peru. The main leader of the opposition to the mine in Tambogrande was murdered.
f. There was a history of human rights abuses committed by the police and private security firms against protestors who opposed mining activities in Peru.
g. The Community Assemblies of Santa y Cajas and of Vanta had declared themselves opposed to the proposed mining activities (see paragraph 23 above);
h. Public opposition to the mine was vocal and well-known to the First Defendant.
i. In April 2004, a demonstration against the mine was met with violence by the police and one protestor had been killed as particularised above.
j. The Defendants were aware of the protest planned for end July/early August 2005 in advance and had evacuated the majority of their employees from the mine in advance of the demonstration.
k. The Defendants had liaised with the police to ensure their presence at the mine in response to the demonstration and were aware that approximately 200 police officers were present at the mine before the arrival of the demonstrators.
l. The First Defendant's founder and Chief Executive Officer, Chris Eager, was in the locality of the Rio Blanco site and its surrounding villages during the week immediately before the protests (the week commencing Monday 25 July).
m. The First Defendant's founder and Chief Operating Officer Raymond Angus was in Peru in the week before the protests and throughout the period of the Claimants' detention and ill-treatment.
n. The First Defendant was informed that 28 persons had been detained at the Rio Blanco mining camp from the moment of their arrival at the camp on 1 August.
o. Between 15 and 17 employees of the Second Defendant were present at the Rio Blanco camp throughout the period of the Claimants' detention there between 1 and 3 August.
p. Eight Forza security employees in the employ of the Second Defendant ere at the mine at the time of the Claimants' detention on 1 August.
q. The First Defendant's Raymond Angus was directly involved in negotiations and discussions about the detainees and their welfare between 1 and 3 August. 151
r. The First Defendant's Raymond Angus requested the Ministry of the Interior and the Directorate General of the Police to provide an additional 25 police officers after he became aware of the detention of the Claimants at the camp."
i) in relation to Monterrico's liability, English law, in so far as its liability arises "out of responsibility for risk management"; but may be either English law or Peruvian law in respect of the "remaining basis" of its liability, but any determination of the appropriate law should await completion of disclosure;
ii) in relation to Rio Blanco' s liability, Peruvian law.
"54. By their wilful misconduct the Defendants caused damage to the Claimants contrary to Article 1969 of the Civil Code. The Claimants rely upon the following:
a. The Defendants were aware of the plans for the demonstration in advance and requested the Peruvian police to attend the Rio Blanco Mining Camp in response to the demonstration;
b. The Defendants knew that there was a serious risk of ill-treatment by the Peruvian police of the demonstrators, not least because of the violence at previous demonstrations particularised above and the documented use of excessive force against protestors and its use of torture against detainees.
c. The Defendants helped the police to identify the First Claimant who was singled out for mistreatment and/or detention;
d. The detention of the Claimants was a joint operation between the Defendants, the police and the Forza mine security guards. The Defendants authorised the police and their security guards to detain the Claimants on the Defendants' property over the course of three days.
e. Employees of the Defendants assaulted the Claimants including beating them and kicking them.
f. The Defendants were aware that the Claimants were being detained and tortured and did not voice any objection to their torture;
g. The Defendants provided and cooked food for the police during their operation at the Rio Blanco mining camp;
h. The Defendants provided logistical support to officers of the Peruvian police during their operation;
i. The Defendants allowed the police to use the Defendants' telecommunication facilities during the course of their operation;
j. Employees of the Defendants recorded telephone conversations between the Eighth Claimant and General Benavides;
k. Forza security guards assisted in the transfer of the Claimants from the Rio Blanco mining camp to the helicopters.
l. The Defendants provided the police with the materials that were used in the torture of the Claimants including ropes, heavy metal objects, black bags and sticks.
m. The Defendants refused the request of the Bishop of Chulucanas to allow the Dialogue Commission to sue the Defendants' helicopter to bring medicine and medical staff to the camp to assist the injured.
55. Further or alternatively by their fault the Defendants caused damage to the Claimants, contrary to Article 1969 of the Civil Code. The Defendants bear the burden of proving that their fault did not cause damage to the Claimants.
a. The Claimants repeat the averments set out in the preceding sub-paragraphs;
b. The Defendants were aware of the risk of violence if the police were called to the mining camp and took no adequate steps to reduce such risks;
c. The Defendants failed to ensure that their own employees prevented the mistreatment of the Claimants;
d. The Defendants failed to ensure that its own private security guards prevented the mistreatment of the Claimants;
e. The Defendants failed to take adequate steps to bring the mistreatment of the Claimants to a halt;
f. The Defendants failed to take any, or any adequate, steps to prevent the police from using the Defendants' property including ropes, heavy metal objects, black bags and sticks in their torture of the Claimants.
56. Further or alternatively, pursuant to Article 1981 of the Code the Defendants are vicariously liable as follows:
(1) Both Defendants are vicariously liable for the actions of their employees;
(2) The First Defendant is vicariously liable for the action of the Second Defendant, a company that it controlled and managed and was the constituent of the First Defendant's economic enterprise for which the First Defendant assumed the risk.
(3) Both Defendants are vicariously liable for the actions of the Forza security guards who were at all material times their subordinates and who caused harm in the exercise of their functions in fulfilment of their services as security guards. The Claimants repeat the facts and matters at paragraph 54, alternatively paragraph 55, above."
"… instigated and/or aided and/or counselled the trespass to the persons of the Claimants and/or conspired to cause them injury and/or conspired to use unlawful means"; see paragraph 57 of the draft Particulars of Claim.
They also plead a case in negligence against Monterrico as follows:
"58. Further and in any event, the Defendant for the reasons set out herein owed the Claimants a duty of care to take reasonable care to avoid foreseeable harm to them and is liable in negligence in respect of its own failures to ensure adequate risk management of the mines operation.
Particulars of Breach
a. Failed to ensure that there were adequate risk management procedures and systems in place to identify the risk of serious violence as environmental protests, not least in respect of local police and private security companies, and to ensure that there would be adequate systems in place to reduce the same;
b. Failed to ensure that there were adequate risk management procedures and systems in place to manage the risk of violence during environmental protests;
c. Failed to ensure that suitable and reliable private security companies were contracted;
d. Failed to give the Second Defendant advice guidance and direction of such a nature as might reasonably be expected to ensure that protestors against the mine, including the Claimants, would not be ill-treated by the police, the Forza mine security guards and the Second Defendant's employees;
e. Failed to take adequate steps to stop the ill-treatment of the Claimants."
Monterrico's position in relation to the application
i) the Claimants made material non-disclosures and/or materially misrepresented matters in their without notice application; and/or
ii) the Claimants have not advanced a good arguable case against the First Defendant; and/or
iii) the Court ought, in the exercise of its discretion, to refuse to continue the injunction.
i) The Rio Blanco project involved an investment of some US $1.4 billion, and could lead to exports of US$1 billion annually for the next 20 years. However, before the protest took place in 2005, there was conflict between the authorities who supported open pit mining as an economic opportunity for the Piura region in northern Peru, on the one hand, and environmental and political activists who denounced the development as a catastrophe for the environment, on ecological grounds. Concerns were also raised about the effect of such mining upon the health of local inhabitants.
ii) On 26 July 2005 a large group of predominantly indigenous members of the peasant community, began what was referred to as a "sacrifice march" towards Henry's Hill, the mountain where the mining site is situated, and upon which Rio Blanco planned to start its mining activities. The various accounts put the overall number of people involved in the protest march as between 400 and 5,000. The protesters carried no weapons other than sticks, whips and machetes.
iii) On 27 July 2005 Monterrico issued a press release expressing its concern about the proposed march towards the mine. The release stated:
"It is believed that the march is being organised by left-wing activists, who are political opponents of the Government and its policy to encourage development in rural areas, and is being timed to coincide with Peru's nation Day, 28 July ... It is not possible at this time to estimate the size of the illegal demonstration, although local authorities had been monitoring an influx of people into the Rio Blanco area from outside the region and the authorities have increased police presence as a precaution."
Monterrico evacuated many of its employees from the mining site and stated that any further enquiries should be directed to Mr. Christopher Eager, Monterrico Metals, at English landline and mobile telephone numbers.
iv) On 28 July 2005 the protest march, which had approached the Rio Blanco mining site, was halted by officers of the Peruvian National Police. The Claimants allege that members of the police threw tear gas from helicopters to the provisional campsites set up by the protesters in the conflict zone. They further alleged that a group of policemen reached the protesters' campsite, entered, destroyed and looted it.
v) The Claimants allege that, although the protesters tried to establish a direct dialogue with the mining company, and displayed white flags, they were detained by the police who again threw tear gas at them. The latter then decided to leave the mining site and to spend the night in an area located three hours by foot from the mining site, where they stayed until the early morning of 1 August 2005.
vi) On 1 August 2005 large numbers of protesters arrived at the campsite at the mining site on Henry's Hill, with a view to breaking into the facilities there. The numbers of protesters who were said to have been approaching the mining site, with a view to seizing it forcefully, or attacking it, ranged from 300-400 to "about 3,000 vigilantes". At about 0530, Captain Santilan, who was the Chief of the Henry's Hill detachment of police, communicated that he was taking an advanced post, where he was surrounded and ambushed by "approximately 2,000 peasants". The campsite on the mining site was protected by 400 policemen. The Claimants' case is that only approximately 400 protesters climbed up Henry's Hill to the mining site on that day, not least because the hill was so steep. The protesters managed to walk past one of the police posts. At about 0600 the police threw tear gas and fired gunshots at the protesters and then started chasing them until about 1pm. The police, still firing gunshots, chased fleeing demonstrators all the way back to their previous night's campsite. The Claimants contend that, when the police eventually reached the campsite where the protesters had spent the previous night, some three hours away from the mining site, the police seized their food, clothes and tents and looted their money. The police then arrested 28 of the protesters and took them back to the mining site, where they were detained.
vii) Although not mentioned to Burton J during the course of the without notice application, the evidence, according to the Defendants, also shows that the arrest and detention of the protesters by the police came about because, during the confrontation at the protesters' campsite on 1 August 2005, one of the protesters shot a policeman, Captain Revollar, in the leg with his own gun, and accordingly the detainees were arrested in connection with this shooting. Thus, say the Defendants, there is every difference between police action to arrest and detain persons suspected of shooting a policeman, and what the Claimants contend was unprovoked and unjustified violence orchestrated by the Defendants, intended to deter the protesters from maintaining their protest against the mine. The Claimants, on the other hand, whilst not denying that this incident occurred, submit that the fact that the violence was initiated by the protesters, rather than by the police, is of no relevance to the Claimants' claims.
viii) The Claimants also contend that one of the protesters, a Mr. Melanio Garcia, was shot and killed by the police at the mining site at Henry's Hill (i.e. on the Defendants' premises) and that this was supported by eyewitness accounts and photographic evidence. The Defendants on the other hand submit that the evidence suggests that Mr. Garcia was shot about 45 minutes by road away from the Henry's Hill mining site, whilst the police were chasing away the protesters who had advanced on the mining site, and that his corpse was found and brought back to the mining site on either 1 or 2 August 2005. The Claimants contend that someone on the Defendants' behalf falsified the entries on the list recording those entering the mining site by wrongly describing Mr. Garcia as a corpse when he entered the mining site on 1 August 2005.
ix) On 2 August 2005, the eighth Claimant, Mr. Julio Vasquez, a journalist, as a result of pressure from the journalists' trade union, was separated from the detainees and told by a General Benavides of the police that his rights were going to be respected. The relevance of this is that the Claimants contend that, while this conversation was taking place, employees of Monterrico recorded everything.
x) The company helicopter delivered food to the mining site and various of the detainees were brought before the prosecutor and presented to him with bags over their heads and were interrogated about the demonstration. The detainees then spent the night in captivity. During the period of their detention the protesters were handcuffed, threatened and insulted, and subjected to beatings, abuse, and degrading treatment at the hands of their captors.
xi) On 3 August 2005 Monterrico donated boots to the detainees as most of them were barefoot and half naked. A group of 11 were transferred in a helicopter to a local town and General Benavides told the press that the police were not being paid for by the Defendants but that they were providing food. Monterrico provided a small truck to enable a police colonel to travel to a local town.
xii) On 4 August 2005 Monterrico issued a press release on its website in which it reported that Monterrico had "a policy of community consultation and participation in the development of the Rio Blanco Copper Project" and that Chris Eager, described as "Monterrico's CEO", had said that he had spent several days in the week during which the protest and torture took place "walking to a number of villages in the area".
xiii) In September 2005 criminal proceedings were brought by the public prosecutor against the Claimants other than the widow of Mr. Garcia. Although from time to time it was reported that such charges had been abandoned, they were periodically reinstated, and the position in March 2009 was that they were still continuing.
xiv) On 6 June 2008, Fedepaz filed a criminal complaint in Piura on behalf of the Claimants against the police and against unnamed "security personnel" at the mining site. The complaint amongst other things alleged that on 1 August 2005:
"Company employees also took part in the beating, as one of the arrested persons, journalist [Mr. Vasquez] recognised the voice of the person who was responsible for security in the mining company, Jorge Paucar Luna."
It also alleged that on 3 August 2005
"The company donates them rubber boots so that they did not travel shoeless, since during the detention many of them were semi-nude and shoeless. This means that the company was aware of the detention and the suppression against the peasants' protest."
xv) Although no complaint was directly made against Monterrico or Rio Blanco, the Fedepaz complaint stated as follows:
"Several victims mention the direct participation of Rio Blanco's security personnel in torturing victims.
In addition, the investigations performed should explain the level of participation of the company's functionaries in the aforementioned crimes. Next, we present the facts that indicate responsibility of the company's managers and security personnel for the events [the] subject matter of the complaint, as it is demonstrated that the[y] were really aware of what was happening, as well as supporting the activities for the performance of police activities.
• General Benavides tells the media that 'the officers are not paid by Minera Majaz although it does supply them with food …'.
• The company assigned a truck to Colonel Lazarte on August 3rd for its [sic] transfer to Huanacabamba.
• The company donated boots to the detainees prior to their transfer to Piura.
• On the day the Commission was transferred to Huanacabamba, at request of the Police, they went to the mining company's facilities in that city. Upon their arrival, they communicated by telephone with Andrew Bristol, General Manager of Minera Majaz. Upon his request, they were allowed to talk on the telephone with Mario Tabra who was detained at the mining camp. Subsequently, due to the pressure exerted by the mining company, Monsignor Turley persuaded the peasants to clear the Zumba heliport, as it was going to be supposedly used to transport medicine and food for the peasant who participated in the march. Nevertheless, the helicopter was used for the transport of more police personnel to the zone, and to throw tear gas to the peasant camps.
• Several detainees indicated the presence of mining personnel, in particular cooks and security personnel at the time of their detention. Specifically, Julio Vasquez indicates the direct participation of security personnel in the tortures inside the camp and particularly the Security Chief of Minera Majaz.
• The first day of detention, the peasants were taken pictures [sic] and it has not been possible to determine whether there were policemen dressed as civilians or mining personnel. Similarly, the person in charge of verifying the peasants' names who got in the helicopter to be transferred to Piura has not been determined.
• Julio Vasquez says that on the second day of detention, when he was separated from the other detainees, an employee of the mining company, who is identifiable and has a relevant job in the company, approached him to apologise for the abuses received on behalf of Majaz company."
xvi) On 9 March 2009 the prosecutor rejected the Fedepaz complaint. On 16 March 2009 Fedepaz appealed the prosecutor's decision. On 2 April 2009 the appeal was declared "founded" by the prosecutorial authority, which ordered further investigations, including the taking of statements from identified employees and a legal representative of Rio Blanco.
The Claimants' case as developed during the course of the application
i) Monterrico itself knew in advance of the proposed protest; published a press release on 27 July 2005 about it; and evacuated many of its employees from the mining site.
ii) The torture and detention went on for three days, with detainees suffering serious injuries and one dying: it was thus inconceivable that either Rio Blanco or Monterrico could have remained unaware of these developments on the mining site of their only asset and only project.
iii) Photographs were taken while the victims were detained at the mining site: these, the Claimants contend, include pictures of employees of Monterrico and/or Rio Blanco.
iv) In all its annual reports, Monterrico describes itself as owning the Rio Blanco mine, and proclaimed and publicised its direct control of the management of the mine.
v) No distinction was ever made in any news release by Monterrico between itself and Rio Blanco, still less to the two intervening Cayman Island holding companies.
vi) At the time of the incident, Monterrico and Rio Blanco shared the same office address in Peru and the same contact numbers for telephone, fax and email in Peru, the latter being firstname.lastname@example.org;
vii) At the time of the protest, Monterrico had not been acquired by Zijin, and still had Australian directors, some of whom were either on site at the time or had been shortly beforehand, one of whom, Andrew Bristow, continued to be investor relations manager at Monterrico Metals in Peru, after the acquisition by the Chinese investors. At the time, he had the power to represent Rio Blanco.
viii) The founding directors of Monterrico were Raymond Angus and Christopher Eager: Mr. Angus was based in Peru for a decade and was, at the time of the protest, the Chief Operating Officer of Monterrico and also the managing director of Rio Blanco (and also said to have been the Chief Operating Officer and Executive Director of Rio Blanco in 2005). His contract of employment as Chief Operating Officer of Monterrico stipulated that he should be based in Lima. It is to be inferred that that was for the purposes of managing the Rio Blanco project on behalf of Monterrico. In response to a request in the course of the criminal complaint made on the Claimants' behalf for the names of those representatives of Rio Blanco in charge of the company during July and August 2005, he was said to have been in charge. Mr. Eager was CEO of Monterrico and said to have been a director of Rio Blanco in 2005.
ix) In 2004, Rio Blanco established a Rio Blanco Steering Committee and a Community Relations Team, and Mr. Angus was closely involved with both of those developments.
x) Mr. Angus was in Peru in the week before the protests and throughout the period of the Claimants' detention and ill-treatment, and was directly involved in negotiations and discussions about the detainees and their welfare between 1 and 3 August 2005. He asked the Ministry of the Interior and the Directorate General of the Police to provide an additional twenty-five police officers after he became aware of the Claimants' detention.
xi) Bishop Daniel Turley, of Chulucanas, Peru, stated that he was very concerned by the reports of the protest at the end of July 2005, and flew to the area. He said that, on 29 July, he spoke to a man with an Australian accent, said to be a manager of MAJAZ (Rio Blanco's previous name), whom he believed was Mr. Angus, apparently speaking from Lima. The Bishop asked Mr. Angus whether MAJAZ would assist in bringing medicine and medical staff to the camp on the mining site by means of the helicopter that the company was using. According to the bishop, Mr. Angus "answered negatively however and we were not able to obtain any further assistance from MAJAZ".
xii) This, the Claimants contend, is supported by the fact that at the time of the demonstrations, Mr. Eager (CEO of Monterrico and Director of Rio Blanco) was in London; Mr. Angus was in Lima; and no other director of Rio Blanco or Monterrico was at the mine.
xiii) In the Fedepaz criminal complaint issued on their behalf in 2008, the Claimants said that the company's representatives:
"… showed a high level of awareness of what was happening, having even assisted with the performance of police activities, such as supplying food to the police officers, lending the company van to Colonel Lazarte Dextre, giving boots to the detainees before they were transferred to this city; indeed staff of the mine even took part in the beatings and acts of aggression committed against the peasant farmers".
xiv) On 1 August 2005, Mr. Angus and Mr. Bristow both attended a government sponsored meeting in Chulucanas, some 300km from the mine.
xv) On 3 August 2005, Mr. Angus was photographed with a journalist reporting on a second governmental meeting held in San Ignacio (a mere 100 km from the mine), which was reported in a local newspaper on 4 August 2005.
xvi) On 4 August 2005, Monterrico issued the press release on its website about the protest, referred to above. On 11 September 2006, Rio Blanco issued a public apology for its role in the protests. This was expressly addressed to
"… the public opinion of the provinces of Ayabaca, Huancabamba, Jaén and San Ignacio, belonging to the regions of Piura and Cajamarca; and in particular the families of the communities of Segunda y Cajas and Yanta as well as to organisations of rondas campesinas and social leaders"
and stated that it wished to express the following:
"1. Minera Majaz S.A. is ... currently undergoing a sincere period of change and substantial improvement in its attitude towards engagement and dialogue with all those who are located in the area of influence of the Rio Blanco Project.
2. ... it wishes to express its public censure and its most deeply felt apologies for attitudes and conflicts that in the past have occurred between certain of its staff and workers, and some families, and organisations and community leaders of the provinces of Huancabamba and Ayabaca.
3. The people associated with these conflicts have been seriously reprimanded and permanently separated from our company, as an expression of the desire among the Directors of Minera Majaz [that] such attitudes are never again repeated in the future
5. As an expression of our good will ... from here on Minera Majaz S.A. will initiate no more legal proceedings; this will be the role solely of the Public prosecutor."
xvii) In November 2007, Monterrico's then Chief Director publicly stated, in answer to the question "What are the mistakes recognised by Majaz?" - "We are very sorry for the incidents that took place in the zone in 2005". This statement was subsequently removed from Monterrico's website.
xviii) When what the Claimants contend were the allegedly damning photographs taken of the protest and torture victims at the time of the torture were published in January 2009, Monterrico remained silent on the accusations for more than a week before issuing a statement on 16 January 2009 stating that "the mining project was a wholly owned British venture at the time of the alleged incidents".
xix) On the same day, Rio Blanco stated
"regrettably, our managers and employees were not innocent in this violent aggression"; (emphasis added).
xx) According to a report by the Peru Support Group of December 2008/January 2009:
"Andrew Bristow ... declined to comment on the accusations, but according to Reuters he did say that the case was 'one of an enormous number of things that have happened in terms of opposition activity to the project'".
xxi) One of the Claimants, Julio Vasquez, a journalist, has said that, while he and the protesters were hooded, he heard a civilian say that they were tortured "by order of (Andrew) Bristow: he was the mining Operations Manager".
xxii) On 6 February 2009, Oxfam America called on the government of Peru and Rio Blanco Copper SA to "respect community rights and the results of the 2007 referendum; [to] investigate human rights violations against community members, clarify exactly what happened, identify those who [were] responsible, and bring them to justice; [to] stop the persecution of community members under investigation for terrorism; [and to] acknowledge the company has operated illegally while exploring without community permission, and compensate the communities".
i) whether there had been material non-disclosure by the Claimants in making their application without notice and, if so, whether the injunctions should be continued;
ii) whether the Claimants had demonstrated that they had a good arguable case so as to justify the granting of an injunction;
iii) whether, as a matter of discretion, the court should in all the circumstances continue the injunctions.
i) The Claimants failed to give Burton J a fair account of the events at the mining site in August 2005, these complaints of non-disclosure included, but were not limited to, allegations that the Claimants failed:
a) to disclose that their arrest and detention by the police came about because, during the confrontation at their campsite on 1 August 2005, one of the protesters shot Captain Revollar in the leg with his own gun, and that the police arrested and detained the detainees in connection with the shooting; and that, accordingly, the violence was initiated by the protesters, some three hours away from the mining site, rather than by the police, at the mining site; and accordingly that there was no basis for suggesting that there had been unprovoked and unjustified violence orchestrated by the Defendants at the mining site, intended to deter the protesters from maintaining their protest against the mine;
b) to disclose that, by the time the protesters arrived at the mining site, they were in the custody or under the protection of the police;
c) to explain that Mr. Bristow was merely a subcontractor performing geological services at the mine, and that he was not actually at the mining site at the time of the protests;
d) to disclose that Mr. Vasquez's claims should be viewed in the context that he subsequently, six months after the protest, accepted employment with Rio Blanco's Social Division, helping the company to gain acceptance in the Piura region.
ii) The Claimants failed to translate and draw to the Court's attention the documents they themselves exhibited and which contained highly relevant material; in particular, the Claimants provided misleading translations of selected passages of those documents, particularly the three statements made by Monterrico/RBC which were presented to the court as admissions of liability when they were nothing of the sort: for example, he pointed out that the statement released by Rio Blanco on 16 January 2009 remained on Rio Blanco's website and that, when properly translated, reads:
"Unfortunately, our own managers and staff have also not been immune to this kind of violence and aggression in the past." (Emphasis supplied.)
He also referred to the fact that it had been published, in English, using the above words, shortly after it was published in Spanish and that it in no way amounted to an acknowledgement of involvement in, or responsibility for, the violence.
iii) The Claimants failed to refer to the fact that, on 1 August 2005, only fifteen or sixteen Rio Blanco personnel were at the mining site (all non-executive operational staff), along with 8 employees of Forza and over 200 policemen. No executive staff of RBC or Monterrico were at or near the mining site during the protests. For example, Mr. Eager's passport showed that he was not in Peru at the time of the demonstrations.
iv) Even if (which was not admitted) an unidentified Rio Blanco or Monterrico employee identified the First Claimant, Mario Tabra, to the police, it would appear, from Fedepaz's response to the Public Prosecutor's decision, that Mr. Tabra was specifically being sought by the police at that stage because he was suspected of having shot Captain Revollar. Thus, even Fedepaz did not suggest that Mr. Tabra was singled out because he was a well known critic of the Mine. In any case, if Mr. Tabra was identified by an RBC or Monterrico employee, there was no suggestion that such employee was involved in mistreating him or any other of the detainees.
v) The Claimants failed to point out that Rio Blanco's response, on hearing of the incident at the mining site on 1 August 2005, was to supply, by means of a helicopter, food, medicines, warm clothing and footwear to the demonstrators at the mining site and to transport the injured to health clinics. In reality, the despatch of 25 police officers, following contact between Rio Blanco and the Ministry of the Interior came after the violence had already broken out at the Mine and could not, therefore, have caused it. The policemen despatched were, it would appear, ordinary members of the Peruvian National Police Force rather than the "DINOES", or special operations police, already deployed by the authorities (rather than Rio Blanco) at the mine. Moreover, the phone call, referred to in the evidence, from the Rio Blanco site security manager to the local head of the Police, General Benavides, could not be fairly characterised as evidence, as the Claimants suggested in their evidence, sworn by Mr. Meeran, of Leigh Day, of the Defendants' "detailed involvement in the handling of the incident".
vi) The Claimants failed to point out that, so far as the photographs were concerned, every person involved in handling the detainees appeared to be wearing the uniform of the Peruvian National Police Special Operations Division (the "DINOES"); that the only photograph showing an employee of Forza shows him sitting alone in a tent wearing a high visibility orange jacket marked "Forza"; that none of the detainees appears in that photograph; and that no employees of Rio Blanco or Monterrico appeared in any of the photographs.
vii) As to the practicalities and quantum of the Claimants' claim, the Claimant misstated the position in that:
a) the Claimants failed to disclose that Conditional Fee Agreements are well known to the Peruvian courts, are known as "Cuota Litis" agreements and were discussed in the Ethics Code of the Lima Bar;
b) the Claimants also failed to disclose that a large number of Peruvian law firms promote and undertake pro bono work;
c) the proposed level of costs for the Claimants (£3 million) was totally unrealistic;
d) the erroneous suggestion that Monterrico's costs would be at the same level as the Claimants' costs, overlooked the existence of the conditional fee agreements upon the basis of which the Claimants were legally represented; and
e) Mr. Meeran's submissions in relation to costs by reference to three cases relating to poisoning (by asbestos, mercury and uranium respectively) did not take account of the fact that the technical and expert issues in such cases would inevitably be far more complicated than a case such as this, where the real issues are who did what and when.
i) there was no evidence that Rio Blanco or Monterrico were in any way responsible for the violence that took place on 1 August 2005 and subsequently;
ii) the police had used similar tactics against the protestors on two previous occasions during their march before they got to the mining site;
iii) the arrests of the Claimants followed the shooting of a policeman by a demonstrator; and
iv) there was no good reason why the Claimants were unable to secure legal redress in Peru prior to the expiry of the limitation period.
Accordingly, he submitted that, on the basis of non-disclosure alone, the Claimants' application for continuation of the injunction should be dismissed.
The court's determination in relation to non-disclosure
Good arguable case
Conclusion on the issue of good arguable case
Risk of dissipation
i) the proceedings were clearly brought as part of an orchestrated and continuing political/environmental campaign;
ii) the events in question took place four years ago;
iii) those events have been investigated by the judicial authorities in Peru and the local NGO, Fedepaz;
iv) despite those investigations the evidence obtained by the Claimants that either Defendant was involved in or responsible for the alleged injuries suffered by the Claimants was tenuous, and the reality was that the Claimants hoped that such evidence would emerge on disclosure;
v) on the Defendants' case, the claims were statute-barred in both England and Peru;
vi) the sums that the Claimants seek to freeze were massively disproportionate to the relatively small personal injuries claims that they actually advance; and
vii) one of the Claimants, Mr. Vasquez, has shown a willingness simply to lie in order to support his case.
i) With a large number of Claimants there was an obvious prospect that one or more of them may have or obtain substantial assets. The claim itself, of course, would be such an asset if successful. There is no reason why Monterrico should be deprived of any potential right of recourse against all the Claimants in the event that it is decided that it has suffered damage by reason of the injunction which the Claimants ought to pay.
ii) The Claimants should be required to give an undertaking to use best endeavours to obtain an ATE policy within a specified period and, if one is not obtained, to consent to the reduction in the amount of the injunction.
iii) The quantum of the injunction should be greatly reduced to reflect:
a) a more realistic assessment of the Claimants' projected claims and their projected costs; and
b) a reduced ATE Policy premium given that Monterrico has now expressly agreed to limit recovery of its costs to £1.25m.
Conclusion in relation to the grant of an injunction
Quantum of freezing order
i) £2 million in respect of damages,
ii) £4.275 million in respect of the Claimants' estimated costs of fighting the action including, in relation to both solicitors and counsel, who are acting on a "no win no fee" basis, an uplift or success fee of 100% on top of the estimated normal figure for costs, and also including the separate costs of the application for the freezing order;
iii) £1.13 million ATE ("after the event") insurance premium to insure the Claimants against liability in respect of the Defendants' costs in circumstances where Monterrico has now expressly agreed to limit recovery of its costs to £1.25 million.
ATE insurance premium.
Cross-undertaking in damages by the Claimants