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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Guerrero & 30 Ors v Monterrico Metals Plc  EWHC 3228 (QB) (15 December 2010)
Cite as:  EWHC 3228 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Mario Alberto Tabra Guerrero & 30 others
|- and -
|Monterrico Metals Plc
|Menandro Neyra Caucha and another
|- and -
|Monterrico Metals Plc & anr
Charles Gibson QC, Toby Riley-Smith and David Simpson (instructed by Freshfields Bruckhaus Deringer LLP) for the Defendant
Hearing dates: 25, 26 November 2010
Crown Copyright ©
Mr Justice Tugendhat :
"The Claimants seek damages (including exemplary damages and/or aggravated damages)… for physical and psychological injuries and consequential losses … suffered at or in the vicinity of the Rio Blanco mine, Peru operated and owned by the Second Defendant, itself and/or as agent for or under the control of, the First Defendant, resulting from the Defendants' (including servants or agents) negligence and/or conspiracy to injure, assault, batter, falsely imprison the Claimants, which conduct was also in contravention of the Peruvian Civil Code ".
"… out of its participation in their torture and other mistreatment, in particular it is alleged that:
a) [The Defendant] instigated and/or facilitated and/or directed and/or controlled the torture and other forms of mistreatment to which the Claimants were exposed; alternatively
b) [The Defendant] failed to take adequate steps to prevent or minimise the torture or mistreatment of the Claimants which occurred upon its property".
"would have provided [the Defendant] with notice, insofar as it did not possess it beforehand, as to (1) the concern of the local communities and (2) the risks of ill-treatment of demonstrators by the police in response to demonstrations against the mining project".
"An increase in its social outreach programme with local communities… and an increase in liaison with regional and national government …".
"Several of the locally based evacuees were kidnapped by community members after they had left the site. These employees of [Rio Blanco] were apparently regarded as traitors to their communities, were beaten and held hostage for a number of days".
"Rio Blanco … wishes to express the following:
1) Minera Majaz SA 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…
4) As an expression of our good will from here on Minera Majaz SA will initiate no more legal proceedings; this will be the role solely of the public prosecutor". There is also pleaded a statement made in November 2007 and another on 16 January 2009 ... as to which there is an issue as to the translation from the Spanish).
THE CONTESTED AMENDMENTS
"Other facts and events occurring in 2004-2006 are relied upon as (1) similar fact evidence in support of the Claimants' contention that the mistreatment of them in July 2005 was ordered and orchestrated by [the Defendant] and (2) showing that the actions of the officers of [the Defendant] in July 2005 were part of a strategy of intimidation and violence directed against individuals in the community who are opposed to the mine, including the use of police officers paid by [the Rio Blanco] in such activities:…".
"In early 2004 local community members called for a protest march against the proposed mine to be held in April 2004. In advance of the planned demonstration employees of Rio Blanco including Mr Tirado planned that the protesters would be invited to a location closer to the mine on the pretence of a meeting to discuss their concerns. It was planned that the police personnel would be flown in by helicopter and would open fire using tear gas and live ammunition".
"after April 2004 [Mr Tirado] supervised rifle shooting practices undertaken by all Rio Blanco employees at the camp using a human figure as a target".
"The above incidents were all orchestrated encouraged and approved by the Defendant and were promoted by Rio Blanco employees under the command of Ray Angus with the intention of provoking incidents that would intimidate those who oppose the mine and justify bringing police forces to the area, which would enable Rio Blanco to establish a presence on community land. These incidents were the subject of a public apology made by Rio Blanco in September 2006 made to the local communities".
"A motive for the aggressive, violent and unlawful strategy adopted by the Defendant towards persons opposed to the mine was that the Defendant knew that the mine would have a very significant adverse environmental impact (including that it would require the diversion of [three rivers]). It is to be inferred that [the Defendant/] Rio Blanco considered that (i) environmental protesters could not be assuaged; and/or that (ii) the existence of environmental protests would draw attention to and raise concerns about the environmental impact of the mine. [The Defendant] or Rio Blanco accordingly established a strategy of violence, defamation and intimidation towards environmental protesters."
THE DECISION OF THE MASTER
"£1.13 million ATE ("after the event") insurance premium to insure the Claimants against liability in respect of the Defendant's Costs in circumstances where [the Defendant] has now expressly agreed to limit recovery of its costs to £1.25 million".
"3. So far as the amendments relating to the matters which the claimants wish to rely upon as showing that the Defendant had over a period of time conducted itself in a way that supports the suggestion that it was responsible vicariously for the activities of the police and the security officers, it is quite clear to me that what I have to do is to conduct a two-fold test.
4. The first limb of that test is to decide whether the matters which are the subject of the proposed amendment are matters which are potentially probative of an issue in this case. It seems to me that they undoubtedly are probative in that, if the claimants can establish that the defendant had a course of conduct over the years which may well have resulted in it instructing or at least condoning the activities which are complained of on the part of the police, that must be probative.
5. The second and much more difficult issue is, having found the matters are probative, to balance that against the potential unjustness to the defendant if the trial is extended to cover the various matters which are the subject of the proposed amended pleading. That is a nicely balanced argument, but at the end of the day I conclude, assuming that additional costs would not balloon out of all proportion to the rest of the costs in the case, that the most important factor in my judgment is that the claimant should have the opportunity of putting forward their own case.
6. It has been submitted that that can be done without disclosure. That would be a very unsatisfactory state of affairs and I am not prepared to say that the claimants are bound to be able to persuade the trial judge that they can rely on these matters if they have not been pleaded. If they are pleaded, of course there is the obligation of disclosure.
7. I am conscious of the fact that there is the possibility that this trial may become unbalanced and that the court will have to consider matters which go beyond the days which are relied upon for this principle incident. If this was a case involving a jury I would think that that would be quite determinative of the matter, but it is not, of course. It is a matter for a judge alone. I am entirely satisfied that a trial judge will be able to control proceedings in such a way that they do not become unbalanced and will be able to take into account the suggestions the Defendant had previous conduct consistent with the allegation that it was complicit in the events of the incident which is the subject of the complaint.
8. For all those reasons I propose to permit the amendments in the document put before me. I also propose to give Mr Gibson and the Claimants permission to appeal".
THE GROUNDS OF APPEAL
"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"1. On 1 August 2005 Claimant 1 was part of the group of demonstrators in the vicinity of Henry's Hill who were attacked by the police using gunshot and tear gas. Claimant 1 was identified to the police by an employee of Rio Blanco, whose certain identity he does not know. Claimant 1 believes he was identified by the said employee because he had been involved in a demonstration a year earlier.
2. Claimant 1 ran away. He hid in a small hut with Claimant 6 and another person, but was found and detained by the police.
3. Claimant 1 was detained by the police and by mine guards employed by Rio Blanco between 1 August 2005 and the early hours of 4 August 2005. The detention was arbitrary and unlawful.
4. During this period of detention Claimant 1 was subjected to torture and inhuman and degrading ill treatment by police officers whose certain identity he does not know:
(a) The police hit Claimant 1 repeatedly with their rifle butts on his back, his legs and his right buttock. Claimant 1 relies upon photographic evidence of his injuries: see Appendix 1B.
(b) The police stripped Claimant 1 to his underpants, beat him with leather batons, kicked and punched him.
(c) Police sprayed a noxious powder in claimant one's face and mouth which caused him to swallow it, produce nasal irritation and caused him to shed tears;
(d) Claimant one was blindfolded and hooded with a nylon sack, which extended from his head down to his waist. The sack was kept on his head for two days. Claimant one lost sense of time and felt like he was being asphyxiated. He felt like and believed that he was going to die. Claimant one relies upon photographic evidence of hooded detainees being held by the police: See appendix 1B.
(e) The police threw water over claimant one, then forced him to dress in a single thin layer of clothing, which immediately became wet. It was winter and claimant one became extremely cold. Claimant one was not given anymore clothes to wear until 3 August 2005.
(f) The police forced claimant one to walk down hill to the river,
(g) Claimant one was kept outdoors by the river, still blindfolded, until evening, then he was placed inside a bathroom near to the river. The police forced claimant one to sit on the concrete floor, still blindfolded, hooded and hands tied. At night, the police briefly lifted the sack and applied more powder to claimant one's face. Claimant one sat there for the following two days.
(h) Claimant one was repeatedly insulted and threatened with being disappeared. He was frightened by these threats because he knew that other people had been disappeared.
(i) Claimant one was not permitted to sleep during the nights of 1 and 2 August, and was kicked and forced to sit up whenever he tried to lie down. Claimant one was given no food or water during his first 24 hours of detention.
(j) Claimant one was forced to sit cross legged and was then pushed forward over his crossed legs and hit from behind. This was done to him three times. Claimant one was resigned to the fact that he was going to die.
(k) Claimant 1 was held for three days with his wrists tied behind his back and was only allowed to move his arms briefly, when he was allowed to eat.
5. On 3 August 2005, claimant one was transferred to a helicopter by Forza mine guards. He was flown by helicopter with other detainees to Jaen, and then transferred to Piura. In Piura, claimant one was interviewed by the police about his detention.
6. Claimant 1 was held until the early morning of 4 August 2005, when he was released…."
7. In the Defence which is specific to the claim of Claimant 1, the Defendant puts Claimant 1 to proof of his allegations. Further, the Defendant denies that any person acting for the Defendant or Rio Blanco participated in what is alleged, or provided any of the instruments by which the Claimant claims he was assaulted and injured.