High Court dismisses claimants' application for an independent re-review of defendants' disclosure
In a dispute about the treatment of protestors at copper mines in Peru, the English High Court reinforced the breadth of the test for disclosure and held that it has the power to order a party to appoint a separate law firm to conduct an independent re-review of its disclosure.
Although it chose not to exercise that power for now in this case, it is a warning to litigants (and their lawyers) that errors in disclosure can have costly consequences.
In Vilca and others v Xstrata Ltd and another  EWHC 1824 (QB), the defendants were part of a large multinational mining group called Xstrata (which has subsequently been taken over by another group, Glencore plc). A significant part of Xstrata's business was its copper mining business. Xstrata's assets included the copper mines at Tintaya and Antapaccay in southern Peru.
It was common ground between the parties that there can be considerable tension between members of the local community, the operators of the mine and local security forces in areas where a mine is set. Police suppression of protests occurs and it is not unknown for that to involve considerable violence. There was a tradition of disturbances on 21 May each year around the Tintaya mine and in May 2012 community protests started building up over the preceding weeks. The second defendant engaged the Peruvian National Police to assist in dealing with the protests and paid them for their services. The protest continued for a number of days and on 28 May 2012 a state of emergency was declared by the Peruvian Government and the protest came to an end soon thereafter.
The 22 claimants allege that protestors were subjected to extreme violence by the Peruvian National Police and that others may have been involved. The protests resulted in two deaths by shooting, one case of critical spinal injury, numerous other severe injuries and, it is alleged, beatings, arbitrary detention and other abusive actions by police, in many instances within the mine compound itself.
Based on those events, the claimants allege various breaches of both English and Peruvian law, including but not limited to allegations that the defendants incited, procured or participated in the police violence, facilitated the unlawful actions of the police by offering logistical support, facilities and information and also bore responsibility through a breach of a duty of care owed to the protesters. There is also an issue about vicarious liability. All these allegations are firmly denied by the defendants.
Background to disclosure issues
Disclosure, the process in the English courts by which the parties exchange documents that may assist or undermine each other's case, was hotly contested in this case. There was a considerable divergence of view between the parties as to what documents fell to be disclosed and, after a hearing in December 2015, the parties found themselves back before the court on three separate occasions between February and July 2016 on the topic of disclosure (see the judgments of Vilca and 21 others v Xstrata Limited and another and the supplemental judgment reported under the same name for further details). As a result, the three week trial listed to begin in mid-June 2016 was postponed until further notice. The most recent hearing before the court in July 2016 concerned the claimants' application that the defendants be ordered to procure "an appropriate re-review of their disclosure" to be carried out by an independent lawyer.
The claimants suggested that the disclosure process was not being carried out by the defendants in accordance with the normally accepted criteria and that the defendants' approach to it had been "grudging". The claimants sought an order for an independent re-review of the defendants' disclosure primarily on the basis that the defendants' initial failure to disclose a "relevant and disclosable" email raised concerns about the integrity of the whole disclosure process.
Were the defendants wrong to withhold the email initially?
Under standard disclosure principles (set out in Civil Procedure Rule 31.6), each party must disclose documents that:
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case
Broadly, the defendants argued that this test should be applied by reference to the parties' agreed list of issues in the case, while the claimants contended that it should be applied to the facts and issues set out in the parties' pleadings, a more expansive approach. The court concluded that the defendants' proposed test was too narrow. Not only would the documents relating to the specific protests be relevant, but also those relating to the defendants' more general attitudes to the protests, The judge emphasised that any document that threw light on the attitude of anyone within the defendants' organisations with "arguably potential influence over how the companies within the group would react to, and give instructions relating to the handling of, the proposed or actual protests relating to the Tintaya mine is relevant and disclosable". The judge went on to say "That is so wherever the document may have been generated. Any such document may, of course, throw a beneficial light on those attitudes; equally, it may not. But whatever its complexion, it is disclosable". Accordingly, the failure to disclose the relevant email in issue at an earlier stage in the disclosure process had been an error.
Did the error justify ordering a re-review of the disclosure by independent lawyers?
When considering whether the late disclosure of the email in issue was sufficient to justify an independent re-review of the defendants' disclosure exercise carried out to date, the judge had no doubt (consistent with Teare J's thinking in Nolan Family Partnership v Walsh  EWHC 535 (Comm)) that such an order was available to him to make despite the fact that such an order would be unprecedented. However, the judge noted that it would be a "most unusual order" to make, pointing in particular to the fact that such an order would impose a costs burden on the client whose solicitors' conduct was the reason of the re-review. It would therefore require "strong grounds" for such an order to be made. The judge did not consider that what was, in reality, one erroneous (albeit significant) decision, corrected quickly, by a law firm in good standing was sufficient to justify such an order in this case.
However, the judge did ask the defendants' solicitors to submit to him, within 14 days, a plan to produce a "sensible formula" for reviewing the defendants' disclosure to ensure that no documents had been unjustifiably excluded. After the claimants had had an opportunity to comment on it, the judge would then consider if it was acceptable. The threat was left hanging as to what the judge would do if it was not.
Further, despite the defendants being anxious for a trial date to be set fairly soon, the judge commented that until he was reasonably satisfied that all proper disclosure and inspection had taken place, he was "reluctant to set this case on a path towards trial".
Despite the fact that an independent re-review of a party's disclosure has never been ordered by the court yet, it is important to note that such an order is still available to the court should it be deemed necessary. At the very least, should a dispute between the parties over disclosure arise that ends up before the court, solicitors on either or both sides are likely to be expected to provide detailed justifications for their actions and decisions taken throughout the disclosure process. Here, the court adopted a halfway house – re-review by the defendants' existing solicitors – but even that will no doubt incur additional costs and has delayed a process that the defendants wanted to expedite.
The case also reinforces the breadth of the test for standard disclosure, used in most High Court cases. However, we are aware that the courts are concerned by the rising costs of disclosure in commercial cases, which is a function of the extent of the search for documents and the time taken to review large numbers of documents. Some courts, such as the Technology & Construction Court, already adopt tighter, more issues-based approaches (such as the defendants argued for here) to manage the extent of disclosure. It may be that the courts will move towards more pro-actively controlling the extent of disclosure in appropriate cases.
Watch this space.