EU and England. Abstract v. concrete justice

The Supreme Court’s judgment in Vedanta[1] offers an interesting opportunity to compare English and EU justice, by showing a substantial difference in their approach to jurisdiction.

 

The Dispute

In this litigation, 1826 Zambian citizens face an English company, Vedanta Resources plc, the parent company of an international group, and a Zambian company controlled by it, Konkola Copper Mines plc (“KCM”), the owner of the Nchanga Copper Mine in Zambia.

The claimants have asserted very serious toxic emissions from that mine and have based their claim on common law negligence and breach of a statutory duty.

The claimant’s appeal is about the jurisdiction of the courts of England and Wales to decide that claim.

The appellants have based their claim against Vedanta upon art. 4 of the Recast Brussels Regulation (Regulation EU 1215/2012) and against KCM thanks to the “necessary or proper party gateway” role of the English defendant (the anchor defendant), which in their submissions permit service to it of proceedings out of the jurisdiction, and consequently to assert jurisdiction on it.

 

The Issue

The claimants have based their claim of English jurisdiction against KCM on Part 6, Practice Direction B, para 3.1, under which service out of the jurisdiction is allowed when between the claimant and the defendant there is a “real issue which it is reasonable for the court to try” and “the claimant wishes to serve the claim form on another person which is a necessary or proper party to that claim”, there being well settled authority that the claimant must also demonstrate that the claim against the anchor defendant has “a real prospect of success” and that “either England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place or the convenient and natural forum”.

The applicants oppose such argument submitting that using art. 5 of the Recast Brussels Regulation would amount to an abuse of EU law.

The first instance judge and the Court of Appeal have held that there is no abuse of EU law unless the anchor defendant is sued only to attract jurisdiction against the foreign defendant, what is that instance had not been the only reason.

 

EU law on jurisdiction in this respect

Art. 8.1 of the Recast Brussels Regulation (derogating from the primary rule on jurisdiction set out in art. 4) provides that

A person domiciled in a member state may also be sued:

1) Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings…

It has been pointed out, even if such provision concerns proceedings against EU sued in another EU member state, it was to be expected that the European Court of Justice would consider as an abuse of law any attempts to circumvent its primary rule of jurisdiction even if the defendant was not domiciled in another member state.

In Freeport[2], Advocate General Mengozzi added that to disapply the primary rule, it is necessary to prove that the proceedings have been instituted for “the sole object to remove one of the defendants from the courts of his own domicile” and that the action instituted against the defendant domiciled on the forum member state was manifestly unfounded.

 

The Supreme Court’s judgment

The Court, agreeing with the appellate judgement, has dismissed the argument of abuse of EU law, has held that there was an arguable case against Vedanta, has found that England would not have been the proper place in which to bring the claim against KCM and that Zambia was “overwhelmingly the proper place for the claim against KCM to be tried” if “substantial justice was available to the parties in Zambia as it is in England”.

The Claimant has argued that the judge had failed to heed judicial warnings that funding issues would only in exceptional cases justify a finding of lack of substantial justice.

The Court has held that the judge – contrary to the appellant’s argument – had considered adequately the issue of funding litigation in Zambia.

The Court considered then whether substantial justice was available in Zambia.

The judge had held that there were in this respect no problems of “any lack of independence or competence in its judiciary or any lack of a fair civil procedure suitable for handling large group claims”.

The Court considered the assessment of the judge that the evidence had demonstrated that lawyers in Zambia who would undertake that litigation “would simply lack the resources in terms of numbers in the legal team, or experience with which to be able to conduct complex litigation of this kind with the requisite degree of competence and efficiency” and “that the Zambian legal profession lacked the resources and experience with which to conduct such litigation successfully”.

Such assessment deserved respect in the Court’s opinion and was objectively justified.

The Court held that the judge’s decision was not disclosing “the misdirection about the meaning of substantial justice which is suggested by the appellants”.

The appeal was then dismissed.

 

Abstract and practical justice

It is suggested that the comparison between EU and English law as to jurisdiction (against a non-domiciled defendant, when together with an anchor defendant), seems to show that while on the one hand EU law bases its ruling on the breach of an abstract legal principle, the English Practice Direction by asserting jurisdiction where “the claimants will not obtain substantial justice in the alternative foreign jurisdictions”, allows to achieve not only a correct legal solution, but a definitely more effective justice.

 

The issue whether the legal profession of the alternative foreign jurisdiction lacks resources and experience

The concern to ensure that a defendant would obtain substantial justice in another jurisdiction, makes it necessary to conduct a deep analysis as to all the various elements required, to affirm that there is a real risk of “substantial justice” in another jurisdiction is necessary.

Without being able and wishing to take a position on the issue whether in this dispute the local legal profession lacked or not the necessary resources and experience, it is suggested that this very delicate area requires great attention, not so much for considerations of comity, but in order to be absolutely sure that in the alternative jurisdiction there is indeed a very serious risk that substantial justice would not be obtainable, also to avoid that all cases end up being tried in England, what – to say nothing of the rest – is perhaps not exactly what the English judiciary is looking for.

 

[1] Vedanta Resources PLC and others v. Lungowe and others, Supreme Court, 10 April 2019 [2019] UKSC 20.

[2] Freeport plc. v. Arnoldsson, European Court of Justice (case C-98/06) [2008], QB 634.

About the article

This article has been published by Mauro Rubino-Sammartano on Lexology

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