Kalma & Ors v African Minerals Ltd & Ors

Mr Justice Foskett:

1. I held a further case management conference in this case on Friday, 10 February, together with the Senior Master who attended to assist with any cost budgeting implications. I delayed giving an immediate ruling to enable me to reflect a little further on the disclosure issues ventilated.

2. The case arises out of claims brought by the remaining 41 Claimants (101 claims having been settled recently). The claims arise out of two separate incidents that took place in November 2010 and April 2012 respectively in the vicinity of the Third Defendant’s Tonkolili Iron Ore mine in Sierra Leone. The case advanced on behalf of the Claimants is that they were injured by the actions of the local police and/or representatives of the Third Defendant (the actions of the local police being said to have been instigated by the Third Defendant) and that the injuries sustained were inflicted unlawfully. Legal responsibility for any injuries sustained is firmly denied by the Third Defendant.

3. There were two main issues for consideration at the CMC: (i) disclosure by the Third Defendant; (ii) the proposed partial lifting of the stay in 6 non-lead cases for the purpose of obtaining medical assessments.

4. I will deal with (ii) first. I indicated my decision at the hearing. I can see no reason not to lift the stay if the purpose is simply to give the Claimants’ advisers the right to argue in due course that the costs of the planned medical assessments in the UK of these various Claimants should be borne by the Third Defendant. However, as I made plain then and I repeat, that is as far as I am prepared to go. Removing the stay is not to be thought as a decision that the Third Defendant will be responsible in due course for these costs; that will be a matter for agreement or decision by the court in due course. However, if the Claimants’ advisers feel that they must have these assessments in order conscientiously to advise the Claimants on any offer of settlement, I do not think it is right for there to be any obstacle (certainly not one imposed by the court) to them doing so. This is a case where the trial of the issues will be confined to the six lead cases and there is nothing in the order lifting the stay that changes that position. However, as I have said, the cost implications arising from the obtaining of the medical assessments remains at large and the order I make is entirely neutral on that issue.

5. Turning to the relatively limited disclosure issues that were ventilated during the hearing, they relate for present purposes to whether certain named individuals should be included as custodians in relation to Search

3. Search 3 relates to documents that may exist for the two-year period from 2010 to the end of 2012 concerning “security policies, governance, relationship with the police and human rights issues.” I will deal with each individual separately: Keith Calder He became CEO in July 2012 and was thus not working for the Third Defendant until several months after the second of the two incidents. His relevance as a custodian could only be as recipient of some report(s) relating to what occurred in that second incident following some form of internal review or inquiry. His predecessor, Alan Watling, has been included as a custodian in Search 3 and it follows that any documents generated in the course of any such review or inquiry that started soon after the event itself is likely to emerge in any trawl of the electronic material relating to him. At the moment, I am disinclined to include Mr Calder as a custodian simply because it is not yet known whether there was any internal review or inquiry in relation to the events of April 2012. If there was, he should be included for the period until the end of 2012. If there was not, there is no point in extending the disclosure exercise. Mohammed Dumbuya and Mohamed Turay They were police liaison officers and it is said by the Third Defendant that there is no justification for looking for documents received or generated by them as they were not “high level officials”, but simply “on the ground” individuals who liaised with the local community and the local police. Whilst I accept that it may be unlikely that they would be caught up in any review or inquiry, it is not impossible that they were and I think it is right that they should be included in Search

3. Vossie Lategan He was the mine security manager appointed in June 2012. His position is, therefore, very much akin to that of Mr Calder His predecessor should plainly be included in Search

3. If the disclosure exercise concerning him (or the evidence generally) does not reveal the existence of any internal inquiry or review, there is not point in including Mr Lategan in Search

3. If it does, he should be included for the period from his appointment until the end of 2012. Graham Murphy His inclusion has now been agreed. Miguel Perry He was the chief finance officer during the whole of the relevant period and it is quite obvious that his role will generate very many thousands of documents none of which would be at all material to the events with which this case is concerned. He is not said by the Third Defendant to be irrelevant, but it is said that proportionality demands that he be excluded as a custodian. I can quite understand that any e-disclosure exercise concerning him would have to be managed very carefully otherwise an enormous number of wholly irrelevant documents would be generated. I am not going to rule him out on grounds of proportionality until efforts have been made to narrow the search parameters to a few key words, phrases or expressions that truly focus upon what is relevant to the case. If that cannot be agreed, I will review the position. File servers

6. The final issue relates to the identification of the file servers that the Third Defendant, in carrying out its disclosure duty, proposes to search. As I understand it, if the name of a particular file or folder does not appear to be relevant to the issues in the case, it will not be searched further. That is entirely acceptable, but the Claimants’ advisers say that they wish to know which files or folders have been excluded. In principle, and provided it does not involve a disproportionate amount of time or cost, I consider that to be an acceptable demand. I can appreciate that a file name might indicate itself that there are commercial sensitivities, wholly unconnected with the case, that the Third Defendant would not wish to be revealed, even as a name, to any third party, including the Claimants’ advisers. If that issue does arise, I can see no reason why the court should not be told of the problem and the reasons for not wishing the name of the file or folder to be revealed and the court can assess the validity of the reasons given: it is akin to a public interest immunity situation.

7. I would be grateful if Counsel could agree a form of order that gives effect to this ruling, but before doing so to await the directions of the Senior Master concerning the cost budgeting issues.