10/04/2019

Will the anchor hold?

If the UK crashes out of the EU, Brussels I Recast (Reg 1215/2012) will cease to apply. This may be good reason to rush to issue proceedings to anchor a claim in England using the domicile provision of Article 4 of Brussels I Recast and then bring in non-EU parties through PD6B’s “necessary or proper party” gateway.

The Supreme Court’s decision today in Vedanta Resources PLC v Lungowe [2019] UKSC 20 is important reading for anyone considering that course of action. It also shows defendants a way to resist this strategy to found jurisdiction.

In fact, the Claimants in the Vedanta case did succeed in using Vedanta to anchor proceedings against its Zambian subsidiary (KCM) even though those proceedings involved numerous Zambian claimants seeking damages for personal injury and related claims due to ground water pollution in Zambia. The strategy only worked, however, because the difficulties in funding and running litigation of this sort in Zambia led the Supreme Court to conclude there would not have been “access to justice” in Zambia for this claim.

Had the “access to justice” issue not been present, the Court would not have granted permission to serve KCM outside of the jurisdiction on the basis that England was not the “proper place” (the “forum conveniens”) for that claim. This is because Vedanta had offered to submit to the Zambian courts’ jurisdiction and so there was no automatic risk of irreconcilable judgments – the Claimants could choose to sue Vedanta and KCL together in Zambia.

Although it relates to mass tort and pollution litigation, the judgment is essential reading for anyone involved in multinational litigation and particularly in mass claims also common in the competition law sphere.