One hand tied, but the other not paralysed, when English Courts assess proper forum and the ends of justice
In Vedanta Resources Plc and another v Lungowe and others [2019] UKSC 20, the UK Supreme Court decided that the English Courts had, and should exercise, jurisdiction to hear claims concerning pollution in Zambia made by 1,826 Zambian villagers, against both:
- a Zambian mining company, Konkola Copper Mines Plc ("KCM"), which operated the mine from which it was alleged that toxic emissions had emanated; and
- its English parent Vedanta Resources Plc ("Vedanta"), which was alleged to have exercised very high levels of control and direction over its subsidiary
It made that ruling despite the fact that:
- the claimants' main target was KCM, and a principal (although not the sole) reason why they were pursuing Vedanta was to utilise it as "anchor defendant" to enable them to sue KCM in England, which would not otherwise have been possible; and
- it considered (in contrast to the first instance Judge and Court of Appeal) that the "proper forum" for determination of the dispute was Zambia.
The basis of its decision was that: - the claim against Vedanta disclosed a real triable issue, did not constitute an abuse of process of EU law, and could not be stayed in favour of Zambia under EU rules; and
- although the fact that England was not the proper forum for the dispute would ordinarily have resulted in a stay of the English claim against KCM, that claim should also proceed since there was a real risk that substantial justice could not be obtained in Zambia.
